Milwaukee Police Association v. City of Milwaukee ( 2016 )

2016 WI 47
SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP400
COMPLETE TITLE: James A. Black, Glen J. Podlesnik and Steven J.
Van Erden,
Plaintiffs-Respondents-Petitioners,
Milwaukee Professional Fire Fighters
Association Local 215,
Intervenor-Plaintiff-Respondent-
Petitioner,
Milwaukee Police Association and Michael V.
Crivello,
Plaintiffs-Respondents-Cross-
Appellants-Petitioners,
v.
City of Milwaukee,
Defendant-Appellant-Cross-Respondent.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 364 Wis. 2d 626, 869 N.W.2d 522)
(Ct. App. 2015 – Published)
PDC No: 2015 WI App 60
OPINION FILED: June 23, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 24, 2016
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Paul R. Van Grunsven
JUSTICES:
CONCURRED: BRADLEY, R. G., J. concurs (Opinion filed).
CONCURRED/DISSENTED: BRADLEY, A. W., J. and ABRAHAMSON, J. concur
and dissent (Opinion filed).
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiffs-respondents-petitioners, intervenor-
plaintiff-respondent-petitioner, and plaintiffs-respondents-
cross-appellants-petitioners, there were briefs by Jonathan
Cermele, Brendan P. Matthews, and Cermele & Matthews, S.C.,
Milwaukee, and John F. Fuchs, Rebecca Boyle, and Fuchs & Boyle
S.C., Milwaukee. Oral argument by Jonathan Cermele and John F.
Fuchs.
For the defendant-appellant-cross-respondent, there was a
brief by Grant F. Langley, Milwaukee City Attorney and Miriam R.
Horwitz, Milwaukee Deputy City Attorney, and oral argument by
Miriam R. Horwitz.
There was an amicus curiae brief by Richard M. Esenberg,
Thomas C. Kamenick, Kenneth Chesebro, Cambridge, MA (pro hac
vice), and Wisconsin Institute for Law & Liberty, Milwaukee.
There was an amicus curiae brief by Luke N. Berg, deputy
solicitor general with whom on the brief was Brad D. Schimel,
attorney general and Misha Tseytlin, solicitor general.
There was an amicus curiae brief by Claire Silverman and
League of Wisconsin Municipalities.
2
2016 WI 47
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP400
(L.C. No. 2013CV5977)
STATE OF WISCONSIN : IN SUPREME COURT
James A. Black, Glen J. Podlesnik and Steven J.
Van Erden,
Plaintiffs-Respondents-Petitioners,
Milwaukee Professional Fire Fighters
Association Local 215,
Intervenor-Plaintiff-Respondent-
Petitioner,
FILED
Milwaukee Police Association and Michael V. JUN 23, 2016
Crivello,
Diane M. Fremgen
Clerk of Supreme Court
Plaintiffs-Respondents-Cross-
Appellants-Petitioners,
v.
City of Milwaukee,
Defendant-Appellant-Cross-Respondent.
REVIEW of a decision of the Court of Appeals. Affirmed in
part and reversed in part.
No. 2014AP400
¶1 MICHAEL J. GABLEMAN, J. This is a review of a
published decision of the court of appeals, which affirmed in
part and reversed in part the Milwaukee County Circuit Court's1
grant of summary judgment in favor of the Milwaukee Police
Association ("Police Association") and the Milwaukee
Professional Fire Fighters Association Local 215 ("Fire Fighters
Association"). Black v. City of Milwaukee, 2015 WI App 60, 364
Wis. 2d 626, 869 N.W.2d 522.
¶2 This case requires us to interpret and apply Article
XI, § 3(1) of the Wisconsin Constitution, better known as the
home rule amendment. "Adopted in 1924, the home rule amendment
was intended to provide cities and villages with greater
autonomy over local affairs," while still retaining the
Legislature's power to legislate. Madison Teachers, Inc. v.
Walker, 2014 WI 99, ¶89, 358 Wis. 2d 1, 851 N.W.2d 337
(footnotes omitted). Accordingly, the home rule amendment gives
cities and villages the ability "to determine their local
affairs and government, subject only to this constitution and to
such enactments of the legislature of statewide concern as with
uniformity shall affect every city or every village."2 Wis.
1
The Honorable Paul R. Van Grunsven presided.
2
In Madison Teachers, Inc. v. Walker, 2014 WI 99, 358
Wis. 2d 1, 851 N.W.2d 337, we noted, "The home rule amendment
does not apply to counties in Wisconsin. However, counties have
home rule protection pursuant to statute, though it is more
limited than the protection afforded by constitutional municipal
home rule." 358 Wis. 2d 1, ¶89 n.26.
2
No. 2014AP400
Const. art. XI, § 3(1). In other words, a city or village may,
under its home rule authority, create a law that deals with its
local affairs, but the Legislature has the power to statutorily
override the city's or village's law if the state statute
touches upon a matter of statewide concern or if the state
statute uniformly affects every city or village. See Madison
Teachers, 358 Wis. 2d 1, ¶101.
¶3 In the present case, we interpret and apply the home
rule amendment to determine whether a section in the City of
Milwaukee's ("the City" or "Milwaukee") charter can trump a
statute enacted by the Legislature. Since 1938, Milwaukee has
required its city employees to comply with a residency
requirement or face termination of their employment. Its
residency requirement is set forth in section 5-02 of the City's
charter. Put simply, it requires city employees to reside within
city limits. In 2013, the Legislature enacted Wis. Stat.
§ 66.0502 (2013-14).3 Simply stated, Wis. Stat. § 66.0502
prohibits cities, villages, towns, counties, and school
districts4 from requiring their employees to reside within their
jurisdictional limits. It is obvious the charter and the statute
conflict: one imposes a residency requirement and one bans
residency requirements. Despite enactment of Wis. Stat.
3
All subsequent references to the Wisconsin Statutes are
the 2013-2014 version unless otherwise noted.
4
As noted in an earlier footnote, the home rule amendment
applies only to cities and villages. Wisconsin Stat. § 66.0502
applies to any city, village, town, county, or school district.
3
No. 2014AP400
§ 66.0502, the City has continued to enforce its residency
requirement.5
¶4 The City claims that it can continue to enforce its
residency requirement pursuant to its home rule authority under
Article XI, § 3(1) of the Wisconsin Constitution. The City
contends that its residency requirement (contained in section 5-
02 of its charter) involves a matter of "local affairs" because
(1) the City has an interest in maintaining a tax base from
which to draw revenue; (2) the City has an interest in its
employees sharing a common community investment as Milwaukee
residents; and (3) the City has an interest in efficiently
delivering city services. Moreover, the City argues that Wis.
Stat. § 66.0502 cannot trump section 5-02 because it does not
with uniformity affect every city or every village. It believes
that "uniformity" must be understood as "actually affecting all
municipalities in equal measure uniformly." According to the
City, Wis. Stat. § 66.0502 fails to satisfy the home rule
amendment's uniformity requirement because it does not impact
all cities or villages in equal measure.
¶5 In contrast, the Police Association claims that the
City can no longer enforce its residency requirement because
Wis. Stat. § 66.0502 trumps section 5-02 of the City's charter.
The Police Association contends, in relevant part, that
5
In their briefs, both the City and the Police Association
state that the parties have agreed that the City will not act to
enforce its residency requirement until our final decision on
the merits.
4
No. 2014AP400
residency requirements constitute a matter primarily of
statewide concern because (1) when the Legislature enacted Wis.
Stat. § 66.0502, it found that "public employee residency
requirements are a matter of statewide concern;" and (2) the
Legislature may legislate on matters that concern public health,
safety, and welfare, and here, it is reasonable to presume that
the Legislature determined that residency requirements
negatively impact the welfare of public employees. Additionally,
the Police Association argues that Wis. Stat. § 66.0502 trumps
section 5-02 of the City's charter because Wis. Stat. § 66.0502
with uniformity affects every city or village. Unlike the City,
it believes that "uniformity" must be understood as requiring
"facial uniformity." According to the Police Association, Wis.
Stat. § 66.0502 is facially uniform because, by its terms, it
applies to all cities, villages, towns, counties, and school
districts. Finally, the Police Association seeks relief and
damages under 42 U.S.C. § 1983. It claims that the City
unconstitutionally deprived it of its "liberty interest in being
free from 'residency' being required as a condition of municipal
employment" when the City continued enforcement of its residency
requirement after the Legislature enacted Wis. Stat. § 66.0502.
¶6 This case presents two issues for our review. The
first is whether Wis. Stat. § 66.0502 precludes the City from
enforcing its residency requirement. The second is whether the
Police Association is entitled to relief and damages under 42
U.S.C. § 1983.
5
No. 2014AP400
¶7 As to the first issue, we hold that Wis. Stat.
§ 66.0502 precludes the City from enforcing its residency
requirement. The Legislature has the power to legislate on
matters of local affairs when its enactment uniformly affects
every city or every village, notwithstanding the home rule
amendment. For purposes of the home rule amendment, an enactment
is uniform when it is facially uniform. Wisconsin Stat.
§ 66.0502 is facially uniform because it applies to "any city,
village, town, county, or school district." Wis. Stat. § 66.0502
(2) (emphasis added). Because Wis. Stat. § 66.0502 uniformly
affects every city or village, it trumps section 5-02 of the
City's charter. As a result, Milwaukee may no longer enforce its
residency requirement.
¶8 As to the second issue, we hold that the Police
Association is not entitled to relief or damages under 42 U.S.C.
§ 1983. Its section 1983 claim fails because the Police
Association has not met the requirements necessary to prevail on
a section 1983 claim. Specifically, the Police Association has
not shown a deprivation of rights, privileges, or immunities
protected by the Constitution or the laws of the United States.6
6
Stated otherwise, we affirm the court of appeals'
determination that the Police Association is not entitled to
relief and damages pursuant to section 1983. However, we reverse
the court of appeals' conclusion that, under the home rule
amendment, section 5-02 of the City's charter trumps Wis. Stat.
§ 66.0502.
6
No. 2014AP400
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
¶9 For many years, Milwaukee7 has required its city
employees to reside within city limits as a condition of
employment. Moreover, it has mandated discharge for any employee
caught living outside its city limits. Section 5-02 of the City
charter contains Milwaukee's residency rule:
1. RESIDENCY REQUIRED. All employe[e]s of the city of
Milwaukee are required to establish and maintain their
actual bona fide residence within the boundaries of
the city. Any employe[e] who does not reside within
the city shall be ineligible for employment by the
city and his employment shall be terminated in a
manner hereinafter set forth.
¶10 On June 20, 2013, the Legislature enacted 2013
Wisconsin Act 20 ("Act 20").8 Section 1270 of Act 20 created Wis.
Stat. § 66.0502, which prohibits any city, village, county, or
school district from requiring an employee to live within a
jurisdictional limit. Specifically, it states,
7
Milwaukee is certainly not the only city that had a
residency requirement prior to the enactment of Wis. Stat.
§ 66.0502. The record shows that 114 municipalities have some
type of restriction on where their employees reside. Moreover,
13 municipalities required all their employees to live within
the municipal limits. The record also shows that 20 counties
have some type of residency restriction on where their employees
reside. Further, 3 counties require all or most of their
employees to live within the county. See Legis. Fiscal Bureau,
No. 544, Local Government Employee Residency Requirements, at 3
(May 9, 2013).
8
The Governor signed Act 20 on June 30, 2013, and the Act
took effect on July 2, 2013.
7
No. 2014AP400
(1) The legislature finds that public employee
residency requirements are a matter of statewide
concern.
(2) In this section, "local governmental unit" means
any city, village, town, county, or school district.
(3)(a) Except as provided in sub. (4), no local
governmental unit may require, as a condition of
employment, that any employee or prospective employee
reside within any jurisdictional unit.
(b) If a local governmental unit has a residency
requirement in effect on July 2, 2013, the residency
requirement does not apply and may not be enforced.9
9
Wisconsin Stat. § 66.0502 contains exceptions that permit
a 15 mile residency requirement for law enforcement, fire, or
emergency personnel:
(4)(a) This statute does not affect any statute that
requires residency within the jurisdictional limits of
any local governmental unit or any provision of state
or local law that requires residency in this state.
(b) Subject to par. (c), a local governmental unit may
impose a residency requirement on law enforcement,
fire, or emergency personnel that requires such
personnel to reside within 15 miles of the
jurisdictional boundaries of the local governmental
unit.
(c) If the local governmental unit is a county, the
county may impose a residency requirement on law
enforcement, fire, or emergency personnel that
requires such personnel to reside within 15 miles of
the jurisdictional boundaries of the city, village, or
town to which the personnel are assigned.
(d) A residency requirement imposed by a local
governmental unit under par. (b) or (c) does not apply
to any volunteer law enforcement, fire, or emergency
personnel who are employees of a local governmental
unit.
Wis. Stat. § 66.0502(4)(a)-(d).
8
No. 2014AP400
Wis. Stat. § 66.0502(1)-(3)(b).
¶11 On the day Act 20 took effect, the City's Common
Council passed a resolution titled, "Substitute resolution
directing all City officials to continue enforcement of s. 5-02
of the Milwaukee City charter relating to residency." It states,
in pertinent part,
This resolution directs all City officials to continue
enforcement of s. 5-02 of the Milwaukee City Charter
relating to residency of City employees. The Common
Council finds that legislative action, and
specifically the enactment of 2013 Wisconsin Act 20,
s. 1270, violates the City's constitutional home rule
authority under Article XI, Section 3(1), of the
Wisconsin State Constitution. Section 1270 purports to
prohibit most municipal laws requiring employee
residency including provisions of the Milwaukee City
Charter.
The Common Council further finds that acquiescence to
this unconstitutional exercise of state authority
would significantly harm the interests of the City and
its residents.
. . . .
[] The issue of local residency is not a matter of
state-wide concern but is instead clearly a matter of
"local affairs and government" to be determined by
local governments that are directly accountable to
local voters; and
[] In 1938, as an exercise of its Constitutional Home
Rule authority, the City of Milwaukee enacted a
charter ordinance, now City Charter s. 5-02, requiring
that all employees reside within the boundaries of the
City . . . .
Furthermore, the resolution listed justifications for the Common
Council's decision to pass the resolution, such as (1) "the need
to ensure that sufficient staff are able to respond in a timely
manner to" emergencies; (2) the need to "minimize[] the City's
9
No. 2014AP400
response time;" (3) the need for city employees to "contribut[e]
to the City's economy; (4) and the desire for city employees to
have "better knowledge of neighborhoods and enhanced
relationships with residents."
¶12 The City's Mayor signed the resolution on the same day
the Common Council passed it. In addition, the Mayor publicly
announced that the City would terminate the employment of any
employee found to be in violation of its residency requirement.
¶13 On July 10, 2013, the Police Association10 filed suit
against the City in Milwaukee County Circuit Court. The Police
Association sought a declaratory judgment, pursuant to Wis.
Stat. § 806.04,11 in order to determine the rights and
obligations of the parties under Wis. Stat. § 66.0502, as well
as a declaration that the City had violated Wis. Stat.
§ 66.0502.12 Additionally, the Police Association asked for
10
The Police Association filed on behalf of "itself and on
behalf of its Members, Michael V. Crivello, James A. Black,
Glenn J. Podlesnik, and Steven J. Van Erden." For readability
purposes, we refer to this group collectively as the "Police
Association."
11
Wisconsin Stat. § 806.04(1) provides, in pertinent part,
"Courts of record within their respective jurisdictions shall
have power to declare rights, status, and other legal relations
whether or not further relief is or could be claimed."
12
At one point, the Police Association also sought a writ
of mandamus compelling the City to begin complying with Wis.
Stat. § 66.0502 by ceasing enforcement of its residency
requirement. However, as the circuit court noted in its decision
and order, "[The Police Association] is no longer pursuing the
writ of mandamus set forth as the third cause of action in the
complaint . . . ." Accordingly, we do not consider whether the
Police Association is entitled to a writ of mandamus.
10
No. 2014AP400
relief and damages under 42 U.S.C. § 1983. It claimed that it
was entitled to relief under section 1983 because the City
violated its liberty interest to be free from residency
requirements as a condition of employment when its Common
Council passed, and the Mayor signed, the resolution.
¶14 Some time later, the Fire Fighters Association
intervened in the action. It sought an "adjudication of the
constitutionality and enforceability of § 66.0502 of Wisconsin
Statutes," and "a permanent injunction enjoining the City of
Milwaukee from enforcing any ordinances, resolutions, policies,
orders, or directives in any form, in contravention of the
rights of the members of Local 215 under § 66.0502 of the
Wisconsin Statutes."13 All parties moved for summary judgment.
¶15 On January 27, 2014, the circuit court held a hearing
on the parties' motions for summary judgment. That same day, the
court issued a decision and order. Regarding the home rule
amendment, the circuit court succinctly stated its findings in
its concluding paragraph:
This Court finds that Wis. Stat. § 66.0502 deals with
a matter primarily of statewide concern and applies
uniformly to all local government units in this state.
The enactment of Wis. Stat. § 66.0502 withdrew from
local governments the power to regulate the matter of
residency requirements for municipal employees, and
thereby removed the issue of residency from the scope
of home rule authority under art. XI, sec. 3(1), Wis.
Const. Consequently, the home rule amendment does not
authorize the City to continue regulating residency
13
In addition, the Fire Fighters Association sought costs
and disbursements.
11
No. 2014AP400
requirements by enforcing an ordinance which is
directly contrary to the legislative mandates of Wis.
Stat. § 66.0502. The City's residency ordinance and
related [resolution] are unenforceable to the extent
that they fail to comply with the legislative mandates
of Wis. Stat. § 66.0502.
Regarding the Police Association's section 1983 claim for
damages, the circuit court concluded that "Wis. Stat. § 66.0502
creates a liberty interest in freedom from residency
requirements as a condition of municipal employment, except as
provided by the statute." But the court did not award damages
because "the City's actions thus far have not deprived any part
of the liberty interest created by Wis. Stat. § 66.0502."
¶16 The City appealed, and the Police Association14 cross-
appealed. The court of appeals affirmed in part and reversed in
part the circuit court's grant of summary judgment. Black v.
City of Milwaukee, 2015 WI App 60, ¶3, 364 Wis. 2d 626, 869
N.W.2d 522. With respect to the section 1983 claim, the court of
appeals affirmed the circuit court's decision not to award
relief or damages under section 1983. Id., ¶3. It did so on the
grounds that Wis. Stat. § 66.0502 "did not create a protectable
liberty interest." Id., ¶35. With respect to the home rule
amendment, the court of appeals concluded, "because Wis. Stat.
§ 66.0502 does not involve a matter of statewide concern and
does not affect all local government units uniformly, it does
not trump the Milwaukee ordinance." Id., ¶3 (emphasis omitted).
14
Only the Police Association and Michael Crivello cross-
appealed. James Black, Glenn Podlesnik, and Steven Van Erden did
not cross-appeal.
12
No. 2014AP400
¶17 In reaching its conclusion on the home rule amendment,
the court of appeals expressed deep concern over the
disproportionate "impact" it believed Wis. Stat. § 66.0502 could
have on the City. See id., ¶¶5-8, 20-29, 33; see also id., ¶¶36-
37 (Kessler, J., concurring). As a consequence of that concern,
it determined that Wis. Stat. § 66.0502 primarily addressed a
matter of local affairs and did not impact every city or village
equally. To support its conclusions, the court of appeals relied
on the Legislative Fiscal Bureau's Paper (#554), titled "Local
Government and Employee Residency Requirements." According to
the court of appeals, Paper #554 hypothesized that elimination
of such requirements might adversely impact Milwaukee's "levels
of employment, incomes, and home values in certain
neighborhoods." Id. ¶6 (majority opinion).
¶18 Further, the court of appeals feared that Milwaukee
might become the next Detroit: "Significantly, . . . the
Legislative Fiscal Bureau paper's analysis warns that abolishing
residency requirements could result in Milwaukee's suffering the
same economic decline recently experienced by the city of
Detroit," and "The report surmised that Milwaukee could face the
same fate as [Detroit], despite arguments to the
contrary . . . ." Id., ¶7. The court of appeals felt so strongly
about the impact Wis. Stat. § 66.0502 might have on the City, it
went so far as to state, "Regardless of what the statute's
language says, the facts in the record make clear that only one
city——Milwaukee——will be deeply and broadly affected." Id., ¶33
(emphasis added); see also id., ¶21 ("The facts in the record,
13
No. 2014AP400
exemplified by the Legislative Fiscal Bureau's paper, make clear
that the goal of Wis. Stat. § 66.0502 was to target the City of
Milwaukee." (emphasis added)). Consequently, the court of
appeals ruled that section 5-02 of the City's ordinance was
"still good law." Id., ¶35.
¶19 The Police Association petitioned this court for
review. We granted the petition on November 4, 2015.
II. STANDARD OF REVIEW
¶20 This case comes before the court as an action for
declaratory judgment and on cross-motions for summary judgment.
"When a circuit court's ruling on motions for declaratory
judgment depends on a question of law, we review the ruling de
novo." Gister v. Am. Family Mut. Ins. Co., 2012 WI 86, ¶8, 342
Wis. 2d 496, 818 N.W.2d 880. "We review the partial grant of
summary judgment independently, applying the same methodology as
the circuit court." In re Brianca M.W., 2007 WI 30, ¶8, 299
Wis. 2d 637, 728 N.W.2d 652. "Summary judgment is appropriate
when there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law." Id.
¶21 In this case, we must also interpret a provision of
the Wisconsin Constitution as well as a state statute. "The
interpretation of a constitutional provision is a question of
law that we review de novo." Appling v. Walker, 2014 WI 96, ¶17,
358 Wis. 2d 132, 853 N.W.2d 888. "The interpretation and
application of a statute present questions of law that this
court reviews de novo while benefitting from the analyses of the
14
No. 2014AP400
court of appeals and circuit court." In re Commitment of Alger,
2015 WI 3, ¶21, 360 Wis. 2d 193, 858 N.W.2d 346.
III. DISCUSSION
¶22 We first discuss whether Wis. Stat. § 66.0502
precludes the City from enforcing its residency requirement. We
then consider whether the Police Association is entitled to
relief and damages under 42 U.S.C. § 1983.
A. WHETHER WIS. STAT. § 66.0502 PRECLUDES THE CITY FROM
ENFORCING ITS RESIDENCY REQUIREMENT
¶23 "The legislative power in this state is lodged in the
legislature. When it exerts that power, it exerts it on behalf
of and in the name of the people of the State of Wisconsin." Van
Gilder v. City of Madison, 222 Wis. 58, 67, 267 N.W. 25 (1936).
Conversely, "cities are creatures of the state legislature
[that] have no inherent right of self-government beyond the
powers expressly granted to them." Madison Teachers, 358
Wis. 2d 1, ¶89 (citing Van Gilder, 222 Wis. at 72-73 (citing
City of Trenton v. New Jersey, 262 U.S. 182, 187 (1923) ("A
municipality is merely a department of the state, and the state
may withhold, grant, or withdraw power and privileges as it sees
fit. However great or small, its sphere of action, it remains
the creature of the state exercising and holding powers and
privileges subject to the sovereign will."))).
¶24 Adopted in 1924, the "recognized purpose" of the home
rule amendment "was to confer upon cities and villages a measure
of self-government not theretofore possessed." State ex rel. v.
Baxter, 195 Wis. 437, 445, 219 N.W. 858 (1928) ("Baxter").
15
No. 2014AP400
Correspondingly, the home rule amendment permits "cities and
villages to determine their local affairs and government,
subject only to this constitution and to such enactments of the
legislature of statewide concern as with uniformity shall affect
every city or every village."15 Wis. Const. art. XI, § 3(1).
¶25 Two years ago, we clarified the relevant analytical
framework for the home rule amendment:
[O]ur home rule case law instructs us that, when
reviewing a legislative enactment under the home rule
amendment, we apply a two-step analysis. First, as a
threshold matter, the court determines whether the
statute concerns a matter of primarily statewide or
primarily local concern. If the statute concerns a
matter of primarily statewide interest, the home rule
amendment is not implicated and our analysis ends. If,
however, the statute concerns a matter of primarily
local affairs, the reviewing court then examines
whether the statute satisfies the uniformity
requirement. If the statute does not, it violates the
home rule amendment.
Madison Teachers, 358 Wis. 2d 1, ¶101.
15
In full, the home rule amendment states, "Cities and
villages organized pursuant to state law may determine their
local affairs and government, subject only to the constitution
and to such enactments of the legislature of statewide concern
as with uniformity shall affect every city or every village. The
method of such determination shall be prescribed by the
legislature." Wis. Const. art. XI, § 3(1) (amended 1981).
An earlier version of the home rule amendment read, "Cities
and villages organized pursuant to state law are hereby
empowered, to determine their local affairs and government,
subject only to the constitution and to such enactments of the
legislature of state-wide concern as shall with uniformity
affect every city or every village. The method of such
determination shall be prescribed by the legislature." Wis.
Const. art. XI, § 3(1) (1924).
16
No. 2014AP400
¶26 The City takes issue with our recent interpretation
of the home rule amendment. It believes that pursuant to the
home rule amendment, a legislative enactment can trump a city
charter ordinance only when the enactment both (1) addresses a
matter of statewide concern, and (2) with uniformity affects
every city or village. In contrast, we have held that a
legislative enactment can trump a city charter ordinance either
(1) when the enactment addresses a matter of statewide concern,
or (2) when the enactment with uniformity affects every city or
village. See id., ¶99.
¶27 We reached our determination after analyzing and
applying firmly-rooted and long-established Wisconsin Supreme
Court precedent. See id., ¶105 (highlighting "this court's long-
held rule that when a charter ordinance of a home rule city
concerns a matter of local affairs, conflicting legislation must
be uniformly applied statewide to satisfy the home rule
amendment"); id., ¶109 n.32 (surveying the "ample scholarship on
the topic of state constitutional home rule," and concluding
that it aligned with this court's interpretation of the home
rule amendment); State ex rel. Harbach v. City of Milwaukee, 189
17
No. 2014AP400
Wis. 84, 86, 206 N.W.2d 210 (1925)16 ("Harbach") ("It is obvious
that the limitation placed upon the power of the legislature
with reference to laws which 'shall with uniformity affect every
city or every village' is confined to the 'local affairs and
government' of cities and villages. With reference to all
subjects that do not constitute 'local affairs,' or relate to
the government of cities and villages, the legislature has the
same power of classification that it had before the adoption of
the home-rule amendment." (emphasis added)); Baxter, 195 Wis. at
44917 ("The power of the legislature to legislate in the future
as it has in the past has not been limited. But where the
16
The home rule amendment was adopted in 1924. While our
current review of the home rule amendment may be temporally
removed from its adoption, the court's review and interpretation
in State ex rel. Harbach v. City of Milwaukee, 189 Wis. 84, 206
N.W.2d 210 (1925) was almost simultaneous with the amendment's
enactment, as that case was decided in 1925. At the time of
adoption, our interpretation of the amendment (which mirrors the
Harbach court's interpretation) was considered "obvious."
Harbach, 189 Wis. at 86.
17
State ex rel. v. Baxter, 195 Wis. 437, 219 N.W. 858
(1928) examined the text, in particular the structure, of the
home rule amendment, explaining,
Power is granted to cities and villages "to determine
their local affairs and government, subject only to
the constitution and to such enactments of the
legislature of state-wide concern as with uniformity
shall affect every city or every village." The phrase
"subject only to this Constitution," etc., is a phrase
of limitation, but it is a limitation upon the power
granted to cities and villages. Nowhere do we find
words of limitation upon the power of the Legislature.
195 Wis. at 445.
18
No. 2014AP400
legislation of a city enacted within the scope of its home-rule
powers comes in conflict with state legislation, the legislation
of the city prevails over the state legislation, unless the
state legislation affects uniformly every city . . . ."); Van
Gilder, 222 Wis. at 84 ("When the legislature deals with local
affairs and government of a city, if its act is not to be
subordinate to a charter ordinance, the act must be one which
affects with uniformity every city. . . . [In contrast,] [w]hen
the legislature deals with matters which are primarily matters
of state-wide concern, it may deal with them free from any
restriction contained in the home-rule amendment. The home-rule
amendment did not withdraw from the legislature its power to
deal with matters primarily of state-wide concern which it
possessed before the adoption of the amendment."); Thompson v.
Kenosha Cty., 64 Wis. 2d 673, 686, 221 N.W. 845 (1974) ("[A]s
this court held in Van Gilder v. Madison and affirmed in West
Allis v. Milwaukee County, this uniformity limitation applies
only if the subject of the statute concerns primarily local
affairs. If the subject of the legislation is of statewide
concern, the uniformity restriction is inapplicable." (footnotes
omitted)); State ex rel. Michalek v. LeGrand, 77 Wis. 2d 520,
530 n.16, 253 N.W.2d 505 (1977) ("Michalek") (noting that the
home rule amendment limits the legislature only in the "field of
local affairs of cities and villages;" thus, the home rule
amendment does not limit the legislature in the field of
statewide affairs (emphasis added)). Adoption of the City's
argument would require us to overturn precedent from this court
19
No. 2014AP400
dating back to 1925. We see no reason to toss out nearly a
century's worth of precedent, and so we proceed under the
framework set forth in Harbach, Baxter, Van Gilder, Thompson,
Michalek, and Madison Teachers.18
18
Similar to the City, the concurrence and the dissent
believe that "a legislative enactment prevails over a
conflicting city charter ordinance under the home rule amendment
when the enactment both concerns a matter of statewide concern
and affects every city or village with uniformity." Concurrence,
¶66; dissent, ¶121 ("A legislative act must be of statewide
concern and then it must apply uniformly.").
The dissent purports to reach its conclusion by reading the
text of the amendment to "mean what it says." See dissent, ¶120.
Its "textual" analysis consists of a regurgitation of the home
rule amendment, followed by a conclusory statement that the text
of the amendment requires both a statewide concern and
uniformity. Dissent, ¶¶120-21. Nowhere does the dissent attempt
to engage in a true analysis of the text by pulling apart,
explaining, and defining the phrases and terms used in the home
rule amendment.
The bulk of the concurrence's analysis rests on an amicus
brief from the Baxter case and some newspaper clippings.
According to the concurrence, the amicus brief, written by the
drafter of the home rule amendment, confirms that a legislative
enactment must both involve a matter of statewide concern and
with uniformity affect every city or every village. Concurrence,
¶62; but see State ex rel. Kalal v. Circuit Court for Dane Cty.,
2004 WI 58, ¶52, 271 Wis. 2d 633, 681 N.W.2d 110 ("Ours is a
government of laws not men, and it is simply incompatible with
democratic government, or indeed, even with fair government, to
have the meaning of a law determined by what the lawgiver meant,
rather than by what the lawgiver promulgated. It is the law that
governs, not the intent of the lawgiver . . . Men may intend
what they will; but it is only the laws that they enact which
bind us." (internal quotation marks omitted) (citing Antonin
Scalia, A Matter of Interpretation, at 17 (Princeton University
Press, 1997)).
(continued)
20
No. 2014AP400
What the concurrence fails to note is that numerous amicus
briefs in addition to the one cited by the concurrence were
filed in Baxter and other home rule amendment cases. These
briefs raised varying interpretations of the home rule
amendment. See Harbach, 189 Wis. 84, Walter H. Bender on behalf
of the Board of Trustees of Milwaukee Public School Teachers
Annuity and Retirement Fund as Amicus Curiae, at 17-18 (1925)
(noting that the phrase "subject to such enactments of the
legislature of statewide concern as shall with uniformity affect
every city or every village," "limit[s] the powers conferred
upon the municipality by the grant" and "limit[s] the
restrictive effect which the grant would otherwise have upon the
powers of the legislature"); Baxter, 195 Wis. 437, William Ryan
on behalf of Olin and Butler as Amicus Curiae, at 24 (1928)
("This limitation . . . has been seized upon by the advocates of
paramount authority of cities under the home rule amendment as a
limitation upon the power of the legislature, rather than a
limitation upon the power granted to cities and villages by the
home rule amendment. Much of the uncertainty regarding the scope
of the home rule amendment seems to have arisen from this
confusion of the application of the limitation; treating it as a
limitation upon the power of the legislature instead of treating
it as it clearly is——a limitation upon the exercise of the grant
of power under the home rule amendment."); Id., William F.
Hannan as Amicus Curiae, at 5 (1928) ("If, by the ratification
of the home rule amendment, any restriction has been placed upon
the power of the legislature to legislate with respect to
municipalities (such a restriction is not conceded), it is a
restriction or limitation upon the legislative power to deal
with 'the local affairs of government' of cities and villages.
No contention is or can be made that the power of the
legislature, with respect to matters that do not constitute 'the
local affairs and government' of cities and villages, has been
curtailed in any way.").
(continued)
21
No. 2014AP400
1. Whether Residency Requirements Are Primarily Of Statewide
Concern Or Are Primarily Of Local Concern
¶28 We have long recognized "that the terms 'local
affairs' and 'statewide concern' in the home rule amendment are
problematically vague." Id., ¶113 (citing Van Gilder, 222
Wis. at 73). "Further, the terms 'local affairs' and 'statewide
concern' carry the risk of oversimplifying reality [because] the
'functions of state and local governments necessarily overlap,'
and moreover, the nature of government functions can change over
time." Id. (citation omitted) (citing Van Gilder, 222 Wis. at
64). As a result, "home rule challenges are, by necessity, fact-
specific inquiries, and determinations are made on an ad hoc
basis." Id.
Since 1925, many Justices have been called upon to
interpret the home rule amendment. These Justices had ample
briefing, with numerous parties presenting varying
interpretations of the home rule amendment. See, e.g., Baxter,
195 Wis. at 443-44 ("[W]e invited briefs amicus curiae [to
address questions related to the home rule amendment.] The
response to this invitation was most gratifying. We have been
favored with excellent briefs on the part of able counsel, and
we have been greatly assisted thereby in arriving definitely and
clearly at the conclusions hereinafter announced."). The very
first court to interpret the amendment unanimously declared that
our reading of the home rule amendment was "obvious." Harbach,
189 Wis. at 86. Additionally, subsequent courts interpreting the
home rule amendment have found our reading "definite[] and
clear[]." Baxter, 195 Wis. at 443-44.
In short, the dissent and the concurrence may present one
way to interpret the home rule amendment. But their
interpretation has been outright rejected by informed Wisconsin
Supreme Court Justices since 1925.
22
No. 2014AP400
¶29 As part of our statewide or local concern analysis,
"we have outlined three areas of legislative enactment: those
that are (1) exclusively a statewide concern; (2) exclusively a
local concern; or (3) a 'mixed bag.'" Id., ¶96; see also
Michalek, 77 Wis. 2d at 526-28. If a legislative enactment
concerns a policy matter that is exclusively of statewide
concern, then the home rule amendment grants no city or village
the authority to regulate the matter. Madison Teachers, 358
Wis. 2d 1, ¶97; see also Van Gilder, 222 Wis. at 84 ("When the
legislature deals with matters which are primarily matters of
state-wide concern, it may deal with them free from any
restriction contained in the home-rule amendment."). In
contrast, if a legislative enactment concerns a policy matter of
"purely local affairs," then "home rule municipalities may
regulate those local matters and, under the home rule amendment,
state legislation that would preempt or make that municipal
regulation unlawful, unless uniformly applied statewide, is
prohibited." Madison Teachers, 358 Wis. 2d 1, ¶98 (citing
Michalek, 77 Wis. 2d at 529). Finally, if a "legislative
enactment touches on an issue that concerns both statewide and
local government interests (a 'mixed bag')," then a court must
determine whether the matter is "primarily" or "paramountly" a
matter of statewide or local concern. Id., ¶100 (citing
Michalek, 77 Wis. 2d at 528).
¶30 Here, the Legislature specially included a public
policy statement in Wis. Stat. § 66.0502: "The legislature finds
that public employee residency requirements are a matter of
23
No. 2014AP400
statewide concern." Wis. Stat. § 66.0502(1). This court has
previously held that legislative determinations regarding
whether a policy matter constitutes a "statewide concern" or a
matter of "local affairs," are "entitled to great weight."
Madison Teachers, 358 Wis. 2d 1, ¶125 (citing Van Gilder, 222
Wis. at 73-74 (noting that "[e]ven though the determination made
[by the Legislature] should be held not to be absolutely
controlling, nevertheless, it is entitled to great weight")).
Deference is proper because "matters of public policy are
primarily for the legislature." Van Gilder, 222 Wis. at 73-74;19
see also Flynn v. Dep't of Admin., 216 Wis. 2d 521, ¶24, 576
N.W.2d 245 (1988) ("This court has long held that it is the
province of the legislature, not the court, to determine public
policy" because as the "voice of the people," "[i]t is the best
19
In full, Van Gilder states,
The home-rule amendment does not lodge the power to
determine what is a "local affair" or what is a
"matter of state-wide concern' either with the
municipality or with the legislature or attempt to
define those terms. In the event of a controversy
between municipalities and the state therefore the
court is required to make the ultimate determination.
In the first instance, the determination of what is a
"local affair" and what is a "matter of state-wide
concern" would seem to be for the legislature for the
reason that such a determination must involve large
considerations of public policy. Even though the
determination made by it should be held not to be
absolutely controlling, nevertheless it is entitled to
great weight because matters of public policy are
primarily for the legislature.
222 Wis. at 73-74.
24
No. 2014AP400
judge of what is necessary to meet the needs of the
public . . . ."). While we give deference to a Legislature's
determination, the ultimate decision "whether a legislative
enactment is primarily a matter of local or statewide concern
rests with this court and not the legislature." Madison
Teachers, 359 Wis. 2d 1, ¶128.20
20
Despite articulating an understanding of the rule that
the Legislature's determination is entitled to great weight, the
court of appeals chose to dismiss the Legislature's specific
determination here:
The argument that residency requirements are a
matter of statewide concern simply because the
legislature said so is not persuasive because it is
unsubstantiated. Neither the Police Association nor
the trial court point to any facts supporting this
claim; the Police Association merely argues on appeal
that the Legislature can do what it wants. We
disagree. . . . In this case, we cannot conclude that
"because the legislature said so" is reason enough to
affirm the trial court when there are no facts to
support such a conclusion. The facts in the record,
exemplified by the Legislative Fiscal Bureau Paper,
make clear that the goal of Wis. Stat. § 66.0502 was
to target the City of Milwaukee. Nearly every portion
of the Legislative Fiscal Bureau paper's analysis
explains in great detail how Milwaukee will be
affected. The effect on the state, on the other hand,
is never substantiated, and only given lip-service
with broad policy arguments.
(continued)
25
No. 2014AP400
¶31 In this case, we are being asked to weigh a statewide
policy-based concern against a local economic interest. On the
one hand, the Legislature, through its enactment of Wis. Stat.
§ 66.0502, has determined that public employees should have the
right to choose where they wish to live. On the other hand, the
City has asserted an interest in maintaining its residency
requirement in order to protect its tax base, its interest in
its employees sharing a common community investment as city
residents, and its interest in its efficient delivery of
services.21
¶32 Given the competing interests outlined above, we
conclude that Wis. Stat. § 66.0502 constitutes a "mixed bag"
because it concerns both statewide and local interests. At this
point, we would ordinarily proceed to apply the test of
paramountcy to determine whether the legislative enactment is
"primarily" or "paramountly" a matter of local affairs or a
Black v. City of Milwaukee, 2015 WI App 60, ¶21, 364
Wis. 2d 626, 869 N.W.2d 522. Our cases discussing deference to
legislative determinations of whether a matter is primarily of
local or statewide concern under the home rule amendment have
never required the Legislature to substantiate such
determinations. See, e.g., Madison Teachers, 358 Wis. 2d 1,
¶¶125-128; Van Gilder, 222 Wis. at 73-74. The court of appeals
was not bound by the Legislature's determination that "public
employee residency requirements are a matter of statewide
concern." However, the court of appeals should have at least
attempted to follow the law it said it understood by giving
great weight to that legislative determination.
21
In its brief, the Police Association conceded that
residency requirements at least partly involve matters of local
concern.
26
No. 2014AP400
matter of statewide concern. However, in this case, we do not
apply the test of paramountcy to determine which interest (state
or local) is paramount. Instead, we give the City the benefit of
the doubt: we assume, without deciding, that Wis. Stat.
§ 66.0502 is a matter of local affairs. Accordingly, we move on
to consider the second step in the home rule analysis——whether
Wis. Stat. § 66.0502 uniformly affects every city or village.
2. Whether Wis. Stat. § 66.0502 With Uniformity Affects Every
City Or Village
¶33 We are instructed by our determination in Madison
Teachers that if the statute concerns a matter of primarily
local affairs, the reviewing court then examines whether the
statute "with uniformity" "affects" "every city or every
village." See 358 Wis. 2d 1, ¶101. This is not the first time we
have examined the home rule amendment's uniformity requirement.
We addressed the home rule amendment's uniformity requirement in
Thompson v. Kenosha County, 64 Wis. 2d 673, 221 N.W.2d 845
(1974), and Van Gilder v. City of Madison, 222 Wis. 58, 267 N.W.
25 (1936). Both of these cases are constitutional home rule
cases, interpreting and applying the same amendment we are
currently interpreting and applying: Article XI, § 3(1) of the
Wisconsin Constitution. With this precedent as our guide, we
turn to the question of whether Wis. Stat. § 66.0502 affects
with uniformity every city or village.
¶34 In Thompson, the Legislature passed Wis. Stat.
§ 70.99, which allowed any Wisconsin county to establish a
county assessor system. 64 Wis. 2d at 676. The plaintiffs argued
27
No. 2014AP400
that Wis. Stat. § 70.99 violated the home rule amendment. Under
the statute, if a county chose to establish a county assessor
system, then the office of assessor in all cities, villages, and
towns within the county was eliminated. Id. Kenosha County chose
to adopt a county assessor system; thus, the office of assessor
was eliminated in all cities, villages, and towns within Kenosha
County. Relying on the home rule amendment, the plaintiffs
argued that Wis. Stat. § 70.99 did not uniformly affect all
cities and villages because the cities and villages in Kenosha
County had no office of assessor, while cities and villages
located in counties that chose to forego adoption of a county
assessor system had an office of assessor. Id. at 683. This
court dismissed their argument, commenting,
Sec. 70.99 is, on its face, uniformly applicable
throughout the state. The legislature did not enact a
statute which could only apply to Kenosha county, or
as is often the case, Milwaukee county. Each county in
the state has an equal right to decide to adopt a
countywide assessor system. . . . Where a statute
confers equal legal powers, that would seem sufficient
to satisfy the uniformity requirement. Thus, for
example, two cities may have identical powers, yet the
respective city councils may enact entirely different
sets of ordinances. The state could hardly be held to
have violated the uniformity requirement in such a
situation.
Id. at 687 (emphasis added). In short, since 1974 we have held
that a statute satisfies the home rule amendment's uniformity
requirement if it is, on its face, uniformly applicable to every
city or village. Id.
28
No. 2014AP400
¶35 We also considered the uniformity requirement in Van
Gilder. There, we expressed skepticism toward the notion that a
law could have a uniform impact on every city or village:
Was it the intention of the people that the
legislature should be without power to enact any law
affecting a city of 2,500 people unless that law at
the same time affected in the same way the City of
Milwaukee, a metropolitan community having few if any
interests akin to those of a small city of the fourth
class? What was meant by uniformity? Was the law to be
uniform in its application to the city of X with 2,500
population and affect it in the same way it affects
the city of Milwaukee, a metropolitan community having
a population of 600,000? In that sense there could
hardly be a law affecting with uniformity every city.
A law uniform in its application might work out one
way in one city and in another way in another city
depending upon the local situation and the way in
which it was in fact administered and so "affect" them
differently.
Van Gilder, 222 Wis. at 67 (emphasis added). We ultimately held,
"[W]e can reach no other conclusion than that it was the
intention of the people in the adoption of the [home rule]
amendment to leave a large measure of control over municipal
affairs with the legislature." Id. at 71. We went on, "To
construe the amendment as meaning that every act of the
legislature relating to cities is subject to a charter ordinance
unless the act of the legislature affected with uniformity every
city from smallest to the greatest, practically destroys
legislative control over municipal affairs . . . ." Id.
(emphasis added).
¶36 In sum, our precedent——going back to at least 1936——
confirms that facial uniformity is sufficient to satisfy the
29
No. 2014AP400
home rule amendment's uniformity requirement. As long as the
statute, on its face, uniformly affects cities or villages
throughout the State, the home rule amendment's uniformity
requirement is satisfied.
¶37 The effect of the court of appeals' interpretation of
uniformity is to ignore the holdings in Van Gilder and Thompson.
That is, while Van Gilder and Thompson instruct that facial
uniformity is sufficient, the court of appeals would hold that
facial uniformity would "all but obliterate the home rule
amendment." Black, 364 Wis. 2d 626, ¶32. The court of appeals
misperceives the point of the home rule amendment. As stated
previously, "The legislative power in this state is lodged in
the legislature. When it exerts that power, it exerts it on
behalf of and in the name of the people of the State of
Wisconsin." Van Gilder, 222 Wis. at 67. The home rule amendment
"confer[red] upon cities and villages a measure of self-
government not theretofore possessed;" however, the amendment
did so via "a grant of power to cities and villages," not via an
"express limitation upon the power of the Legislature."22
22
"In ascertaining the meaning of the home-rule amendment,
we should also take into account the fact that the legislature
was not hostile to a larger measure of local self-government by
cities." Van Gilder, 222 Wis. 2d at 71. The Legislature was not
adverse to the idea of cities having some control because, as
noted by the Attorney General in the helpful amicus curiae brief
prepared by the Solicitor General's office,
At the time Wisconsin debated the Amendment, the
problem of the day was the Legislature enacting city-
specific legislation, addressing purely local issues,
because cities lacked sufficient legal power to
(continued)
30
No. 2014AP400
Baxter, 195 Wis. at 445. ("The [amendment] is a grant of power
to cities and villages. . . . The phrase 'subject only to this
constitution,' etc., is a phrase of limitation, but it is a
limitation upon the power granted to cities and villages.").
¶38 Thus, under the home rule amendment, a city or village
"operates freed from legislative restriction" only in "a rather
narrow field." Van Gilder, 222 Wis. at 80-81. We have explained,
When the legislature deals with local affairs as
distinguished from matters which are primarily of
state-wide concern, it can only do so effectually by
an act which affects with uniformity every city. It is
true that this leaves a rather narrow field in which
the home-rule amendment operates freed from
legislative restriction, but there is no middle
ground. Either the field within which the home-rule
amendment operates must be narrowed or the field
within which the legislature operates must be
narrowed, and as was pointed out in the Baxter Case,
the amendment clearly contemplates legislative
regulation of municipal affairs and there was no
intention on the part of the people in adopting the
home rule amendment to create a state within a state,
an imperium in imperio.
Id. at 80-81. When the Legislature wants to legislate on a
matter of local affairs, it may do so if the law, on its face,
uniformly affects every city or village.
¶39 In this case, the Legislature banned residency
requirements throughout Wisconsin by enacting Wis. Stat.
§ 66.0502. We conclude that Wis. Stat. § 66.0502 (consistent
regulate their own affairs. The Amendment sought to
cure this problem by giving cities general law-making
authority so the Legislature would no longer have to
pass such laws.
31
No. 2014AP400
with the home rule amendment) uniformly affects every city or
village. We so conclude because the plain language of Wis. Stat.
§ 66.0502 demonstrates its uniform effect: Wis. Stat. § 66.0502
says that "no local governmental unit" may have a residency
requirement, and it goes on to define "local governmental unit"
to mean "any city, village, town, county, or school district" in
the State. Wis. Stat. § 66.0502(2)-(3) (emphasis added).23
Consequently, Wis. Stat. § 66.0502 uniformly bans residency
requirements, and in so doing, it satisfies the home rule
amendment's uniformity requirement.24
23
Here, the Legislature ensured that Wis. Stat. § 66.0502
would with uniformity affect every city or village by making
Wis. Stat. § 66.0502 apply to any city, village, town, county,
or school district in the state. While the Legislature can
preempt a city ordinance under the home rule amendment by making
a statute apply to all cities or villages, it is no small
decision to make a statute applicable to every city or village
in the State. The Legislature must still make an important
trade-off when it is considering whether it should legislate on
a matter of local concern.
24
In its petition for review, the Police Association raised
two additional issues:
1. May a municipality disregard legislative prohibitions on
certain conditions of municipal employment, by simply
passing an ordinance disputing the legislature's policy
determination and asserting [h]ome [r]ule authority to do
so, without first seeking a declaration as to the rights
and obligations of the parties?
2. Should a municipality be required to prove "beyond a
reasonable doubt" that a statute is an unconstitutional
overreach of its authority under the [h]ome [r]ule
[a]mendment?
(continued)
32
No. 2014AP400
B. WHETHER THE POLICE ASSOCIATION IS ENTITLED TO RELIEF AND
DAMAGES UNDER SECTION 1983
¶40 Finally, we address the Police Association's argument
that it is entitled to relief and damages under 42 U.S.C.
§ 1983. "Section 1983 provides a remedy against 'any person'
who, under color of state law, deprives another of rights
protected by the Constitution."25 Collins v. City of Harker
Heights, Tex., 503 U.S. 115, 120-21 (1992). "Section 1983, by
itself, does not create any substantive constitutional rights;"
rather, it "provides a remedy for a deprivation of such rights."
Penterman v. Wis. Elec. Power Co., 211 Wis. 2d 458, ¶22, 565
N.W.2d 521 (1997) (citing Chapman v. Houston Welfare Rights
We do not address these issues because they are not necessary to
resolve this case. See State v. Cain, 2012 WI 68, ¶37 n.11, 342
Wis. 2d 1, 816 N.W.2d 177 ("[A]n appellate court should decide
cases on the narrowest possible grounds." (quoting Md. Arms Ltd.
P'ship v. Connell, 2010 WI 64, ¶48, 326 Wis. 2d 300, 786
N.W.2d 15)); see also Hull v. State Farm Mut. Auto Ins. Co., 222
Wis. 2d 627, 640 n.7, 586 N.W.2d 863 (1998) ("As a general rule,
when our resolution of one issue disposes of a case, we will not
address additional issues.").
25
In full, section 1983 reads,
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory of the District of Columbia, subjects, or
causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for
redress.
42 U.S.C. § 1983.
33
No. 2014AP400
Org., 441 U.S. 600, 617-18 (1979)). Accordingly, in order to
state a claim under section 1983, "a party must allege: (1) that
a person acting under the color of state law committed the
alleged conduct; and (2) that this conduct deprived the party of
rights, privileges, or immunities protected by the Constitution
or laws of the United States." Penterman, 211 Wis. 2d 458, ¶22.
¶41 The Police Association bases its section 1983 claim on
an alleged denial of due process. The Due Process Clause of the
Fourteenth Amendment "prohibits a state from depriving 'any
person of life, liberty, or property without due process of
law.'" Id., ¶39. Both this court and the Supreme Court of the
United States recognize that three types of section 1983 claims
may be brought against a state under the Due Process Clause:
(1) Plaintiffs may bring suit under sec. 1983 for
state officials' violations of their rights under a
specific provision in the Bill of Rights; (2) The Due
Process Clause contains a substantive component that
bars certain arbitrary, wrongful government actions
(these are commonly known as substantive due process
rights); and (3) An action may be brought under sec.
1983 for a violation of procedural due process.
Casteel v. McCaughtry, 176 Wis. 2d 571, 578, 500 N.W.2d 277
(1993) (citing Zinermon v. Burch, 494 U.S. 113, 125 (1990)). In
other words, a person bringing a section 1983 claim under the
Due Process Clause can base this claim on an alleged violation
of a specific provision in the bill of rights, on an alleged
violation of substantive due process, or on an alleged violation
of procedural due process.
34
No. 2014AP400
¶42 The Police Association makes no argument that its
section 1983 claim is based on a specific provision in the Bill
of Rights, nor does it argue a procedural due process violation;
rather, throughout its briefing, it has referred exclusively to
substantive due process. Accordingly, we turn to discuss whether
the City violated the Police Association's substantive due
process rights.
1. Whether The City Violated The Police Association's
Substantive Due Process Rights
¶43 Substantive due process "protects individuals from
'certain arbitrary, wrongful actions regardless of the fairness
of the procedures used to implement them.'" Penterman, 211
Wis. 2d 458, ¶39 (some quotation marks omitted) (quoting
Zinermon, 494 U.S. at 125). "The test to determine if state
conduct complained of violates substantive due process is if the
conduct 'shocks the conscience . . . or interferes with rights
implicit in the concept of ordered society.'" State ex rel.
Greer, 353 Wis. 2d 307, ¶57 (quoting State v. Schulpius, 2006 WI
1, ¶33, 287 Wis. 2d 44, 707 N.W.2d 495). The Police Association
argues both that the City's actions shock the conscience and
that its actions interfere with a liberty interest. We address
each argument in turn.
i. Whether The City's Actions Shock The Conscience
¶44 Actions shock the conscience when they offend "even
hardened sensibilities" or "the decencies of civilized conduct."
Rochin v. California, 342 U.S. 165, 172-73 (1952); see also
Uhlrig v. Harder, 64 F.3d 567, 574 (10th Cir.) ("[T]he 'shock
35
No. 2014AP400
the conscience' standard requires a high level of
outrageousness . . . ." (citing Collins, 503 U.S. at 128));
Harron v. Town of Franklin, 660 F.3d 531, 536 (1st Cir. 2011)
(describing acts that shock the conscience as "truly outrageous,
uncivilized, and intolerable"). For example, in Rochin v.
California, 342 U.S. 165 (1952), the case that first developed
the shock the conscience test, police officers illegally broke
into Rochin's home, jumped on him, handcuffed him, struggled to
open his mouth, forced an emetic solution into his stomach, and
made him vomit, so they could obtain evidence. 342 U.S. at 166.
The Supreme Court of the United States held that these actions
were "too close to the rack and the screw to permit . . . ." Id.
at 172.
¶45 In the present case, the Common Council passed, and
the Mayor signed, a resolution, which affirmed the section of
its City charter requiring city employee residency. Relying on
the home rule amendment, the resolution claimed that the City
could still enforce its residency requirement because its
charter (section 5.02) trumped the state statute (Wis. Stat.
§ 66.0502). Because the City believed its charter prevailed over
36
No. 2014AP400
the state statute, the resolution stated that the City would
continue to enforce its residency requirement.26
¶46 Simply stated, these actions do not "shock the
conscience"——they do not offend "even hardened sensibilities" or
"the decencies of civilized conduct." Here, we had a genuine
legal dispute as to which law, Wis. Stat. § 66.0502 or section
5-02 of the City's charter, would prevail. The Common Council
and the Mayor, by passing the resolution, merely provided the
City's opinion that, pursuant to the home rule amendment,
section 5-02 of the City's charter trumped Wis. Stat. § 66.0502.
The City has not pointed to any case where factually similar
conduct was held to shock the conscience. Therefore, we are not
willing to conclude that a genuine legal dispute over the
priority of two competing laws (one a statute and one a section
of a city charter) rises to the level of conscience-shocking
behavior.
ii. Whether The City's Actions Deprived The Police Association
Of A Fundamental Right Or Liberty
¶47 The Supreme Court of the United States "has always
been reluctant to expand the concept of substantive due process
26
In its brief, the Police Association applied the shocks
the conscience test to both the Mayor's actions and the Common
Council's actions: "Substantive due process is violated by
executive action when it can properly be characterized as
arbitrary, or conscience shocking, in a constitutional sense,"
and "Substantive due process is violated by legislative action
and can properly be recognized as arbitrary or conscience
shocking, when its sweep is unnecessarily broad and invades a
protected freedom." (quotation marks and citation omitted).
37
No. 2014AP400
because guideposts for reasonable decision making in this
unchartered area are scarce and open-ended." Collins, 503 U.S.
at 126. This is because "[b]y extending constitutional
protection to an asserted right or liberty interest, [the
Court], to a great extent, place[s] the matter outside the arena
of public debate and legislative action." Washington v.
Glucksberg, 521 U.S. 702, 720 (1997). Accordingly, "[t]he
doctrine of judicial self-restraint requires [a court] to
exercise the utmost care whenever [a court] [is] asked to break
new ground in this field," Collins, 503 U.S. at 126, "lest the
liberty protected by the Due Process Clause be subtly
transformed into the policy preferences of the [m]embers of [a
court]," Glucksberg, 521 U.S. at 720. In determining whether an
asserted right falls within the purview of substantive due
process, the Supreme Court has "regularly observed that the Due
Process Clause specially protects those fundamental rights and
liberties which are, objectively, 'deeply rooted in this
Nation's history and tradition.'" Id. (emphasis added) (quoting
Moore v. City of East Cleveland, Oh., 431 U.S. 494, 503 (1977)
(plurality opinion)).
¶48 Here, the Police Association has not asserted a
fundamental right or liberty that is deeply rooted in this
Nation's history and tradition. Rather, the Police Association
claims that Wis. Stat. § 66.0502——on the day it was enacted——
created a liberty interest in being free from residency
requirements as a condition of employment. To make this
38
No. 2014AP400
argument, the Police Association pulls from procedural due
process cases.
¶49 For example, the Police Association relies on Hewitt
v. Helms, 459 U.S. 460 (1983) for the proposition that a liberty
interest may arise from two sources: the Due Process Clause or
the laws of a state. 459 U.S. at 466. In Hewitt, the Supreme
Court of the United States ultimately concluded that the
"statutory framework governing the administration of state
prisons gave rise to a liberty interest . . . , but . . . the
procedures afforded [the] respondent were 'due process' under
the Fourteenth Amendment." Id. (emphasis added). Throughout its
opinion, the Court made reference to the state regulation giving
rise to procedural due process protections: "procedural
guidelines," "procedural rights," "procedural requirements," and
"procedural safeguards." Id. at 471, 472, 473, 475. There, the
"Due Process Clause require[d] only an informal nonadversary
review of evidence . . . in order to confine an inmate feared to
be a threat to institutional security to administrative
segregation." Id. at 474 (emphasis added).
¶50 We recognize that the Supreme Court, in cases like
Hewitt, has "repeatedly held that state statutes may create
liberty interests that are entitled to the procedural
protections of the Due Process Clause of the Fourteenth
Amendment." Vitek v. Jones, 445 U.S. 480, 488 (1980) (emphasis
added). However, the "Supreme Court has never held that such
state-created interests constitute a fundamental liberty
interest protected under a substantive due process theory.
39
No. 2014AP400
Rather, the Court has analyzed state-created liberties under a
procedural due process theory." Krausharr v. Flanigan, 45 F.3d
1040, 1047 (7th Cir. 1995) (emphasis added); see also Robinson
v. Howell, 902 F. Supp. 836, 843 (S.D. Ind. 1995) ("A state
cannot legislate or otherwise determine what constitutes a
fundamental principle of justice and liberty so as to be worthy
of protection under the federal constitution."). The Police
Association has not pointed to any contrary authority. Because
"[t]he doctrine of judicial restraint requires [a court] to
exercise the utmost care" when determining whether a substantive
due process right exists, we decline to create a new right or
liberty interest in being free from residency requirements as a
condition of employment. See Collins, 503 U.S. at 126. As a
result, we conclude that the Police Association's substantive
due process argument fails. Because the Police Association has
not shown a deprivation of rights, privileges, or immunities
protected by the Constitution or laws of the United States, it
is not entitled to relief or damages under section 1983.27
27
The Police Association appears to argue (1) that the
City's resolution deprived it of a non-fundamental liberty
interest in being free from a residency requirement and (2) that
this deprivation does not survive rational basis review. Even
assuming that the first of these arguments is valid (which we do
not decide), the resolution survives rational basis review. The
resolution was rationally related to the City's legitimate
interest in expressing its opinion on whether, pursuant to the
home rule amendment, section 5-02 of the City's charter trumped
Wis. Stat. § 66.0502.
40
No. 2014AP400
IV. CONCLUSION
¶51 To summarize, first, we hold that Wis. Stat. § 66.0502
precludes the City from enforcing its residency requirement. The
Legislature has the power to legislate on matters of local
affairs when its enactment uniformly affects every city or every
village, notwithstanding the home rule amendment. For purposes
of the home rule amendment, an enactment is uniform when it is
facially uniform. Wisconsin Stat. § 66.0502 is facially uniform
because it applies to "any city, village, town, county, or
school district." Wis. Stat. § 66.0502 (2) (emphasis added).
Because Wis. Stat. § 66.0502 uniformly affects every city or
village, it trumps section 5-02 of the City's charter. Milwaukee
may no longer enforce its residency requirement. Second, we hold
that the Police Association is not entitled to relief or damages
under 42 U.S.C. § 1983. Its section 1983 claim fails because the
Police Association has not met the requirements necessary to
prevail on a section 1983 claim. Specifically, the Police
Association has not shown a deprivation of rights, privileges,
or immunities protected by the Constitution or laws of the
United States.
By the Court.—The decision of the court of appeals is
affirmed in part and reversed in part.
41
No. 2014AP400.rgb
¶52 REBECCA G. BRADLEY, J. (concurring). I agree that
Wis. Stat. § 66.0502 trumps Milwaukee's residency ordinance and
therefore I join the majority opinion. I write separately to
point out that the original meaning of the home rule amendment
to the Wisconsin Constitution decrees a different interpretation
than this court gives. The home rule amendment provides that:
"Cities and villages . . . may determine their local affairs and
government, subject only to this constitution and to such
enactments of the legislature of statewide concern as with
uniformity shall affect every city or every village. . . ."
Wis. Const. art. XI, § 3(1). The majority holds that the
statute controls over any conflicting city charter ordinance
"either (1) when the enactment addresses a matter of statewide
concern, or (2) when the enactment with uniformity affects every
city or village." Majority op., ¶26.
¶53 I cannot agree with this interpretation based on the
text of the home rule amendment and its original meaning. After
examining the constitutional debates and practices surrounding
the amendment's adoption, I conclude that a legislative
enactment preempts a conflicting city charter ordinance under
the home rule amendment only when the enactment both concerns a
matter of statewide concern and with uniformity affects every
city or village. See Wis. Const. art. XI, § 3(1). Here, Wis.
Stat. § 66.0502 meets both the statewide concern and uniformity
requirements; therefore, § 66.0502 prevails over the City of
Milwaukee's residency requirement found in section 5-02 of the
1
No. 2014AP400.rgb
City's charter. As a result, although I disagree with the
majority's interpretation and application of the home rule
amendment, I agree with the end result: Wis. Stat. § 66.0502
precludes the City of Milwaukee from enforcing its residency
requirement.
I. INTERPRETATION OF THE HOME RULE AMENDMENT
¶54 The methodology used to interpret amendments to the
Wisconsin Constitution is well established. See, e.g.,
Dairyland Greyhound Park, Inc. v. Doyle, 2006 WI 107, ¶19, 295
Wis. 2d 1, 719 N.W.2d 408; id., ¶¶114-17 (Prosser, J.,
concurring in part, dissenting in part); Thompson v. Craney, 199
Wis. 2d 674, 680, 546 N.W.2d 123 (1996). We independently
interpret the Wisconsin Constitution,1 "to give effect to the
intent of the framers and of the people who adopted it; and it
is a rule of construction applicable to all constitutions that
they are to be construed so as to promote the objects for which
they were framed and adopted." State v. Cole, 2003 WI 112, ¶10,
264 Wis. 2d 520, 665 N.W.2d 328 (quotation marks and citations
omitted). We may look to "three primary sources in determining
the meaning of a constitutional provision: [1] the plain
meaning, [2] the constitutional debates and practices of the
time, and [3] the earliest interpretations of the provision by
the legislature, as manifested through the first legislative
action following adoption." Dairyland Greyhound Park, 295 Wis.
1
Thompson v. Craney, 199 Wis. 2d 674, 680, 546 N.W.2d 123
(1996).
2
No. 2014AP400.rgb
2d 1, ¶19.2 A focus on the first two sources shows the text of
the home rule amendment authorizes cities and villages to
"determine their local affairs and government" subject only to
the Wisconsin Constitution and a legislative enactment both
addressing a statewide concern and with uniformity affecting
every city or every village. See Wis. Const. art. XI, § 3(1).
I give priority to the plain meaning of the words of the home
rule amendment. See Dairyland Greyhound Park, 295 Wis. 2d 1,
¶117 (Prosser, J., concurring in part, dissenting in part).
A. Plain meaning
¶55 To understand the original meaning of the home rule
amendment, I begin with the text of the amendment. The home
rule amendment provides, in pertinent part: "Cities and villages
organized pursuant to state law may determine their local
affairs and government, subject only to this constitution and to
such enactments of the legislature of statewide concern as with
uniformity shall affect every city or every village." Wis.
I do not address legislative interpretations to determine
2
the meaning of the home rule amendment because
In the performance of assigned constitutional
duties each branch of the Government must initially
interpret the Constitution, and the interpretation of
its powers by any branch is due great respect from the
others. . . . Many decisions of this Court, however,
have unequivocally reaffirmed the holding of Marbury
v. Madison that '(i)t is emphatically the province and
duty of the judicial department to say what the law
is.'
United States v. Nixon, 418 U.S. 683, 703 (1974)(quoting Marbury
v. Madison, 5 U.S. 137, 177, 1 Cranch 137, 2 L. Ed. 60
(1803))(internal citation omitted).
3
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Const. art. XI, § 3(1). The structure of this sentence reveals
the meaning of the home rule amendment. The first clause
provides: "Cities and villages organized pursuant to state law
may determine their local affairs and government." See id.
This independent clause grants power to cities and villages to
govern "their local affairs and government." See id. The
second clause, a dependent clause, modifies the preceding
independent clause and places two limitations on the grant of
power to cities and villages. First, the constitution may limit
city or village authority to determine its local affairs. The
second limitation subordinates the power of cities and villages
to: "such enactments of the legislature of statewide concern as
with uniformity shall affect every city or every village." See
id. This second limitation contains two requirements evidenced
by its grammatical construction.3 The subject of this limitation
is "enactments of the legislature," while the verb is "shall
affect." The phrase "of statewide concern" specifies the type
of enactments that supersede local governance, and the phrase
"as with uniformity" specifies how those enactments "shall
affect" every city or every village. Because one phrase
modifies the subject and the other phrase modifies the verb,
both modifiers are necessary, rather than unilaterally
sufficient requirements. In other words, the text of the home
rule amendment authorizes cities and villages to "determine
3
"Words are to be given the meaning that proper grammar and
usage would assign them." Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 140 (2012).
4
No. 2014AP400.rgb
their local affairs and government" subject only to the
Wisconsin Constitution and a legislative enactment both
addressing a statewide concern and with uniformity affecting
every city or every village. The "subject to" phrase accords
priority4 over local governance to both the constitution and
enactments of the legislature of statewide concern, provided the
uniformity requirement is met. In the event of conflict between
a local enactment and either the constitution or an enactment of
the legislature (1) where the subject matter is of statewide
concern and (2) that applies with uniformity to every city and
village, the local enactment must give way. The text of the
home rule amendment cannot be reasonably or grammatically read
in any other way.
¶56 Much of this court's precedent, including our recent
decision in Madison Teachers, Inc. v. Walker, 2014 WI 99, ¶101,
358 Wis. 2d 1, 851 N.W.2d 337, fails to apply the plain meaning
of the home rule amendment. Nevertheless, the majority relies
entirely upon the home rule framework set forth in Madison
Teachers without any attempt to explain how the text of the
amendment supports that framework. The majority states:
[O]ur home rule case law instructs us that, when
reviewing a legislative enactment under the home rule
amendment, we apply a two-step analysis. First, as a
threshold matter, the court determines whether the
statute concerns a matter of primarily statewide or
primarily local concern. If the statute concerns a
matter of primarily statewide interest, the home rule
amendment is not implicated and our analysis ends.
If, however, the statute concerns a matter of
4
Id. at 127.
5
No. 2014AP400.rgb
primarily local affairs, the reviewing court then
examines whether the statute satisfies the uniformity
requirement. If the statute does not, it violates the
home rule amendment.
Majority op., ¶25 (quoting Madison Teachers, 358 Wis. 2d 1,
¶101) (emphasis added). To conclude as the majority does, that
analysis of the home rule amendment stops if the legislative
enactment at issue addresses an issue primarily of statewide
concern and that the uniformity requirement applies only to
legislation concerning issues primarily of local concern, simply
does not comport with the text of the amendment.
¶57 As emphasized above, Madison Teachers did not purport
to rely on the text of the home rule amendment to craft the
analytical framework employed by the majority opinion here.
Instead, Madison Teachers relied on case law concerning the home
rule amendment dating back to 1926. Id., ¶¶96-101, 117 (citing
State ex rel. Ekern v. City of Milwaukee, 190 Wis. 633, 640, 209
N.W. 860 (1926)). The problem with Madison Teachers' reliance
on precedent and in turn the majority opinion's employment of
the analytical framework from Madison Teachers is that no prior
case reconciles the text of the home rule amendment with this
judicially-created analytical framework.5
5
See, e.g., Thompson v. Kenosha Cty., 64 Wis. 2d 673, 221
N.W.2d 845 (1974); Van Gilder v. City of Madison, 222 Wis. 58,
267 N.W. 25 (1936); State ex rel. Sleeman v. Baxter, 195 Wis.
437, 219 N.W. 858 (1928); State ex rel. Ekern v. City of
Milwaukee, 190 Wis. 633, 209 N.W. 860 (1926); State ex rel.
Harbach v. City of Milwaukee, 189 Wis. 84, 86, 206 N.W. 210
(1925).
6
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¶58 Where even long-standing precedent contravenes the
constitution, it is ripe for reconsideration.
"Stare decisis is not . . . a universal, inexorable
command," especially in cases involving the
interpretation of the Federal Constitution. Erroneous
decisions in such constitutional cases are uniquely
durable, because correction through legislative
action, save for constitutional amendment, is
impossible. It is therefore our duty to reconsider
constitutional interpretations that "depar[t] from a
proper understanding" of the Constitution.
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 954-55
(1992)(Rehnquist, C.J., concurring in part, dissenting in part)
(alteration in original)(internal citations omitted). "The
principle of stare decisis does not compel us to adhere to
erroneous precedents or refuse to correct our own mistakes."
State v. Outagamie Cty. Bd. of Adjustment, 2001 WI 78, ¶31, 244
Wis. 2d 613, 628 N.W.2d 376. "Our constitutional watch does not
cease merely because we have spoken before on an issue; when it
becomes clear that a prior constitutional interpretation is
unsound we are obliged to reexamine the question." Casey, 505
U.S. at 955 (Rehnquist, C.J., concurring in part, dissenting in
part). The durability of erroneous decisions interpreting the
home rule amendment under the Wisconsin Constitution illustrates
the danger of rigidly adhering to the doctrine of stare decisis
at the expense of fidelity to the constitution. It is this
court's duty to reconsider interpretations of the home rule
amendment that depart from a proper understanding of that
constitutional provision. This court should be "ready at all
times to subordinate any possible, though unjustifiable, pride
7
No. 2014AP400.rgb
of opinion to a justifiable pride in trying to decide rightly."
Ekern, 190 Wis. at 635.
B. Constitutional debates and practices
¶59 The plain meaning interpretation of the home rule
amendment explained above finds support in the historical
context in which the home rule amendment was adopted, including
relevant statements made by the framers of the amendment as well
as public statements made by proponents of the amendment who
communicated the meaning of the amendment to voters.
Understanding the context in which the home rule amendment was
proposed and ratified is essential because "[t]he meaning of the
constitutional provision having been once firmly established as
of the time of its adoption, such meaning continues forever,
unless it is changed or modified by the Constitution." State ex
rel. Bare v. Schinz, 194 Wis. 397, 403, 216 N.W. 509 (1927).
Unlike statutory interpretation where consultation of extrinsic
sources is typically limited to resolving ambiguities,6
examination of constitutional debates and historical practices
from extrinsic sources is necessary in constitutional
interpretation to ascertain original meaning:
The reasons we employ a different methodology for
constitutional interpretation are evident.
Constitutional provisions do not become law until they
are approved by the people. Voters do not have the
same access to the "words" of a provision as the
legislators who framed those words; and most voters
are not familiar with the debates in the legislature.
As a result, voters necessarily consider second-hand
6
State ex rel. Kalal v. Circuit Court for Dane Cty., 2004
WI 58, ¶50, 271 Wis. 2d 633, 681 N.W.2d 110.
8
No. 2014AP400.rgb
explanations and discussion at the time of
ratification. In addition, the meaning of words may
evolve over time, obscuring the original meaning or
purpose of a provision. The original meaning of a
provision might be lost if courts could not resort to
extrinsic sources. Finally, interpreting a
constitutional provision is likely to have a more
lasting effect than the interpretation of a statute,
inasmuch as statutory language can be more easily
changed than constitutional language. Thus, it is
vital for court decisions to capture accurately the
essence of a constitutional provision.
Dairyland Greyhound Park, 295 Wis. 2d 1, ¶116 (Prosser, J.,
concurring in part, dissenting in part). Consultation of the
contemporaneous writings of the framer of a constitutional
amendment may aid in ascertaining original meaning "not because
they were Framers and therefore their intent is authoritative
and must be the law; but rather because their writings, like
those of other intelligent and informed people of the time,
display how the text of the Constitution was originally
understood." Antonin Scalia, A Matter of Interpretation 38 (Amy
Gutmann ed., 1997).
¶60 Accordingly, it is first essential to understand the
context in which the home rule amendment was drafted and
proposed. The home rule amendment arose as a direct result of
this court's decision in State ex rel. Mueller v. Thompson, 149
Wis. 488, 137 N.W. 20 (1912).7 In Mueller, this court
invalidated a 1911 statute, known as the "home rule act," which
authorized cities to amend their city charters. Id. at 490,
493-94, 497. The "home rule act" at issue in Mueller provided:
7
Daniel W. Hoan, Brief for Wisconsin League of
Municipalities as Amicus Curiae at 2 (No. 252) in State ex rel.
Sleeman v. Baxter, 195 Wis. 437, 219 N.W. 858 (1928).
9
No. 2014AP400.rgb
"Every city, in addition to the powers now possessed,
is hereby given authority to alter or amend its
charter, or to adopt a new charter by convention, in
the manner provided in this act, and for that purpose
is hereby granted and declared to have all powers in
relation to the form of its government, and to the
conduct of its municipal affairs not in contravention
of or withheld by the constitution or laws, operative
generally throughout the state."
Id. at 493-94. Operating under the "home rule act," the City of
Milwaukee's Common Council adopted a resolution to amend its
charter to allow the City to operate an ice plant. Id. at 498-
99 (Timlin, J., concurring). After the resolution passed, the
City Clerk refused to place the proposed amendment of the City's
charter on the ballot. Id. at 489. The State pursued a
mandamus action against the City Clerk that the circuit court
granted. Id. at 489. This court reversed and held that the
City Clerk had no duty to place the proposed amendment to the
City's charter on the ballot because the "home rule act" that
granted the authority to cities to amend their charters was an
unconstitutional delegation of legislative power. Id. at 491-
92, 497. The court then alluded to the possibility of a home
rule amendment to our constitution:
It is correctly claimed on the one side, and not
effectually, if at all, denied upon the other, that in
most cases where legislation of the nature of that in
question has been adopted it was preceded by a
constitutional amendment expressly authorizing it,
while in those not so preceded the legislation was
condemned as unconstitutional.
Id. at 497-98.
¶61 Following the invalidation of the "home rule act" in
Mueller, work on a home rule amendment culminated in a joint
resolution "[t]o amend section 3 of article XI of the
10
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constitution, relating to powers of cities and villages"8 that
passed both houses in 1921 and 1923 and was set for the 1924
general election. Wisconsin Legislative Reference Bureau, State
of Wisconsin Blue Book 219 (2015-16). A joint resolution set
forth the amendment, in pertinent part:
Resolved by the senate, the assembly concurring,
That section 3 of article XI of the constitution be
amended to read: (Article XI) Section 3: Cities and
villages organized pursuant to state law It shall be
the duty of the legislature, and they are hereby
empowered, to determine their local affairs and
government, subject only to this constitution and to
such enactments of the legislature of state-wide
concern as shall with uniformity affect every city or
every village. The method of such determination shall
be prescribed by the legislature. to provide for the
organization of cities and incorporated villages, and
to restrict their power of taxation, assessment,
borrowing money, contracting debts and loaning their
credit, so as to prevent abuses in assessments and
taxation, and in contracting debts by such municipal
corporations.
Jt. Res. 18-S (Wis. 1923)(italics and internal quotation marks
omitted).9
¶62 Not only was the home rule amendment an outgrowth of
our decision in Mueller, but the attorney who represented the
City Clerk in that case, Daniel W. Hoan, was a primary drafter
of the home rule amendment. See Daniel W. Hoan, Brief for
Wisconsin League of Municipalities as Amicus Curiae at 2 (No.
252) in Baxter, 195 Wis. 437. Hoan, who served as mayor of
8
Jt. Res. 39-S (Wis. 1921); Jt. Res. 34 (Wis. 1923).
9
A subsequent change in the home rule amendment from "are
hereby empowered, to" to "may" is not pertinent to my analysis.
11
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Milwaukee from 1916-1940,10 filed an amicus brief on behalf of
the League of Municipalities in Baxter, in which he set forth a
detailed account of his intent in drafting the home rule
amendment. Id. Hoan first explained in his amicus brief in
Baxter that he "drafted this Home Rule Amendment to overcome the
difficulties pointed out in [Mueller]" and that he presented the
amendment's wording and meaning to city attorneys around the
state and to legislative committee members and that during those
presentations "no other interpretation of this amendment was
there offered except as outlined in this brief." Id. at 2-3.
He then explained that he determined that striking certain
language from Article XI, Section 3, pertaining to legislative
authority, to create the grant of authority to cities and
villages, rather than adding a new section to the constitution,
would provide greater clarity as to the purpose and meaning of
the home rule amendment. Id. at 8. He stated that the home
rule amendment makes "certain that cities and villages shall
have a grant of power to determine their local affairs and
government." Id. at 12-13. To ensure that cities and villages
received this authority under the home rule amendment, the
amendment contains only two limitations on local power:
"'subject only to this constitution and to such enactments of
the legislature of state-wide concern as shall with uniformity
affect every city or every village.'" Id. at 13 (quoting Wis.
Const. art. XI, § 3(1)). Hoan explains:
10
Edward S. Kerstein, Milwaukee's All-American Mayor:
Portrait of Daniel Webster Hoan 82, 178 (1966).
12
No. 2014AP400.rgb
We ask the court to particularly take note of the
words "only" and "uniformity." We ask the court
likewise to note carefully the wording of this clause
as leaving no doubt that all parts of it are
descriptive of the type of legislative act that the
local power is subject to. We submit that this
wording is not ambiguous as other constitutional Home
Rule amendments may be. It does not say——subject to
state laws, subject to state laws of state-wide
concern, or subject to laws uniformly affecting
cities, but it does say——subject only to such state
laws as are therein defined, and these laws must meet
two tests: First——do they involve a subject of state-
wide concern, and second——do they with uniformity
affect every city or village?
Id. at 13-14 (emphasis added) (italics in original). There
could not be a clearer confirmation of the original meaning of
the home rule amendment than this. The person who drafted the
home rule amendment specifically clarified that a legislative
enactment must both involve a matter of statewide concern and
with uniformity affect every city or every village.
¶63 In addition to the framer's interpretation of the home
rule amendment, between 1919 and 1924, newspapers from across
the state published content addressing the need for a home rule
amendment and providing voters with information regarding the
meaning of home rule amendment. For example, in 1919, Hoan, who
was then Mayor of Milwaukee, wrote a letter to the editor in
support of the home rule amendment, which had recently failed to
pass the Senate by a single vote. Daniel W. Hoan, Letter to the
Editor, Voice of the People, The Capital Times, Apr. 22, 1919,
at 4. Mayor Hoan's letter strongly advocated for the passage of
the home rule amendment to address the problem of the
legislature having to review numerous proposed bills dealing
with purely local matters. Id. He stated: "At this time when
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everyone in the legislature is crying out about the long
session, why should we continue a system which piles up hundreds
of bills affecting cities to be considered by that body." Id.
¶64 The sentiment that a home rule amendment was necessary
to not only free the legislature from addressing purely local
matters, but also to grant authority to cities and villages to
adopt amendments to their own charters to deal with such matters
was repeated in several newspaper articles. In 1921, The
Capital Times reported:
While the amendment was broad in its application
covering other cities of the state, the principle
purpose of passing it was to aid Milwaukee. It is
estimated that over 25 percent of the measures before
the Wisconsin legislature directly affecting Milwaukee
and a home rule [] could be passed upon locally if
home rule were in force.
Home Rule Amendment Is Nullified, The Capital Times, Jan. 27,
1921, at 1. Similarly, the Oshkosh Daily Northwestern reported
that according to Mayor Hoan, "City legislation of only local
interest takes up at least a month of the legislature's time
each session." Income Tax Bills Posted for Hearing, Oshkosh
Daily Northwestern, Mar. 2, 1921, at 11. The Appleton Post-
Crescent stated "one-third of state legislation has to do with
matters pertaining to municipalities and state legislators have
not the training and experience to deal efficiently with mere
local problems." Home Rule Bill is Indorsed By City Officers,
Appleton Post-Crescent, June 8, 1922, at 1. Newspapers cited
examples of these problematic bills concerning purely local
matters, which under the home rule amendment could be dealt with
locally by cities and villages. For example, one recently
14
No. 2014AP400.rgb
enacted bill allowed a city office to install a telephone.
Joseph P. Harris, Questions and Answers, The Capital Times, Jan.
19, 1924, at 9. Another recently introduced bill called for the
insertion of a comma in one City's charter, which would clarify
whether the mayor had the authority to veto a resolution. Henry
Noll, Home Rule Law Big Step Ahead, Urges M'Gregor, Wisconsin
State Journal, July 20, 1924.
¶65 Along with the need for the home rule amendment,
newspaper content also confirms the preservation of state
legislative power over cities and villages, which was
communicated to voters prior to the 1924 general election.
Mayor Hoan explained: "The state will not lose its power over
cities . . . for it can prohibit them from doing anything by
making state wide application to all measures passed. Cities
will be given a free hand in local affairs, without becoming
free from state legislation . . . ." Income Tax Bills Posted
for Hearing, Oshkosh Daily Northwestern, Mar. 2, 1921, at 11
(emphasis added). In a question and answer column that appeared
in The Capital Times, political science Professor Joseph P.
Harris explained that "Home rule secures to cities and villages
a larger share in the control over matters of purely local
concern." Joseph P. Harris, Questions and Answers, The Capital
Times, Jan. 19, 1924, at 9. The Secretary of the Wisconsin
League of Municipalities, Ford H. MacGregor, stated "'The home
rule amendment is intended to give cities and villages greater
powers of local self-government. . . . The amendment will give
municipalities of the state power to draft and adopt amendments
15
No. 2014AP400.rgb
to their own charters without having to go to the legislature to
get the general charters law amended.'" Cities are Urged to
Favor 'Home Rule,' Manitowoc Herald-Times, July 3, 1924, at 3.
In a Wisconsin State Journal article, MacGreger also
corroborates the priority accorded to state legislative
enactments of general applicability to all cities and villages
under the home rule amendment:
While this home rule amendment gives cities and
villages greater power of local self-government, it in
no way ties the hands of the state legislature in
matters of state-wide concern . . . . It does prevent
the legislature from interfering in purely local
affairs but it does not prevent the state from passing
any law in which the state as a whole is interested.
Any general law relative to public health, education,
the regulation of public utilities, the police power,
fire protection, or any other subject of state-wide
interest may be enacted by the legislature anytime
provided it applies to all cities or villages. Of
course, any home rule charter conflicting with any of
these general laws would be void.
Henry Noll, Home Rule Law Big Step Ahead, Urges M'Gregor,
Wisconsin State Journal, July 20, 1924. (emphasis added).
¶66 Newspaper articles leading up to the 1924 general
election reveal that proponents of the home rule amendment
communicated two main points about the amendment to voters.
First, the home rule amendment was necessary to grant authority
to cities and villages to address matters of purely local
concern, which in turn would free the legislature from the
burden of considering large volumes of proposed legislation
relating to purely local concerns. Second, the home rule
amendment would expand authority to cities and villages, but
would not limit legislative authority over statewide matters as
16
No. 2014AP400.rgb
long as the legislation relating to a statewide matter was with
uniformity applied to all cities and villages. The original
meaning of the home rule amendment communicated to the voters
who ratified the amendment, along with the interpretation
detailed by the drafter of the amendment, reinforce the plain
meaning analysis above and collectively support the
interpretation that a legislative enactment prevails over a
conflicting city charter ordinance under the home rule amendment
when the enactment both concerns a matter of statewide concern
and affects every city or village with uniformity. Here, Wis.
Stat. § 66.0502 meets both requirements.
II. WISCONSIN STAT. § 66.0502
¶67 As the majority opinion describes, Wis. Stat.
§ 66.0502 "prohibits cities, villages, towns, counties, and
school districts from requiring their employees to reside within
their jurisdictional limits." Majority op., ¶3 (footnote
omitted). Section 66.0502 conflicts with the City of
Milwaukee's residency requirement found in section 5-02 of the
City's charter. Id. Under the original meaning of the home
rule amendment, to prevail over the City's residency
requirement, § 66.0502 must both (1) address a statewide concern
and (2) with uniformity affect every city or every village.
A. Statewide concern requirement
¶68 In determining whether a legislative enactment
pertains to a local or a statewide concern,
our court has outlined three areas of legislative
enactment: (1) Those that are "exclusively of state-
wide concern;" (2) those that "may be fairly
classified as entirely of local character;" and (3)
17
No. 2014AP400.rgb
those which "it is not possible to fit . . .
exclusively into one or the other of these two
categories."
State ex rel. Michalek v. LeGrand, 77 Wis. 2d 520, 526-27, 253
N.W.2d 505 (1977) (footnotes omitted). As for this third
category, referred to as a "mixed bag," courts have applied "the
test of paramountcy" to determine whether "a challenged
legislative enactment, state or local, possessing aspects of
'state-wide concern' and of 'local affairs,' is primarily or
paramountly a matter of 'local affairs and government' under the
home rule amendment or of 'state-wide concern . . . .'" Id. at
527-28.
¶69 However, applying the original meaning of the home
rule amendment eliminates any need for the "test of
paramountcy"——a judicial creation conspicuously absent from the
text of the constitution. This is because the purpose of the
home rule amendment, as discussed in Part I, was to empower
cities and villages to address matters of purely local concern
rather than require legislative action to resolve these matters.
When a legislative enactment involves any degree of statewide
concern, it will not violate the home rule amendment so long as
the enactment with uniformity affects every city or every
village.
¶70 Here, Wis. Stat. § 66.0502 involves matters of
statewide concern; therefore it does not address concerns that
are purely local. First, § 66.0502(1) provides: "The
legislature finds that public employee residency requirements
are a matter of statewide concern." This legislative public
policy statement must be given great weight even though the
18
No. 2014AP400.rgb
court must make the ultimate determination. Madison Teachers,
358 Wis. 2d 1, ¶¶125, 128; Van Gilder, 222 Wis. at 73-74.
Second, the legislature's decision to apply § 66.0502 to all
"local governmental units" meaning "any city, village, town,
county, or school district" indicates that the legislative
enactment involves issues of statewide concern.11 See Wis. Stat.
§ 66.0502(2)-(3). Finally, the prohibition on residency
requirements under § 66.0502 addresses issues of public welfare,
the free movement of citizens, and the recruitment of workers——
all matters of statewide concern. In sum, because Wis. Stat.
§ 66.0502 addresses issues of statewide concern, it cannot be
categorized as a legislative enactment addressing a purely local
concern.
B. Uniformity requirement
¶71 As referenced above, Wis. Stat. § 66.0502 applies to
any "city, village, town, county, or school district," and
therefore, on its face, is uniform. Majority op., ¶36.
Accordingly, I agree with the majority that § 66.0502 satisfies
the uniformity requirement of the home rule amendment. See
majority op., ¶¶34-39.
III. CONCLUSION
11
This idea was contemplated by the drafter of the home
rule amendment, who stated: "For example, if the legislature
passes a bill uniformly affecting all cities . . . the fact that
the legislature acted creates an assumption in legal minds that
the subject matter must be of state-wide concern. See Daniel W.
Hoan, Brief for the Wisconsin League of Municipalities as Amicus
Curiae at 19 (No. 252) in Baxter, 195 Wis. 437.
19
No. 2014AP400.rgb
¶72 Under the home rule amendment, a legislative enactment
prevails over a conflicting city charter ordinance when the
enactment both concerns a matter of statewide concern and with
uniformity affects every city or village. See Wis. Const. art.
XI, § 3(1). This interpretation is based on the plain meaning
of the home rule amendment as reflected in the history of the
amendment and the constitutional debates and practices at the
time the amendment was adopted. Here, Wis. Stat. § 66.0502
meets both the statewide concern and the uniformity
requirements.
¶73 Although I disagree with the majority's interpretation
of the home rule amendment, I agree that Wis. Stat. § 66.0502
precludes the City of Milwaukee from enforcing its residency
requirement. Accordingly, I respectfully concur.
20
No. 2014AP400.awb
¶74 ANN WALSH BRADLEY, J. (concurring and dissenting). I
agree with the majority that the Police Association is not
entitled to relief or damages. Majority op., ¶8. Likewise, I
agree that the purpose of the Home Rule Amendment is to grant
power and self-governance to cities and villages, providing them
with greater autonomy over local affairs. Majority op., ¶2.
¶75 I write separately, however, because the majority
turns that purpose on its head. Instead of freeing
municipalities from interference by the legislature when dealing
with local affairs, the majority limits the power and restrains
the ability of municipalities to self-govern.
¶76 In reaching its conclusion that Wis. Stat. § 66.0502
precludes the city of Milwaukee from enforcing its residency
requirement, the majority grants extensive power to the
legislature to interfere with matters that relate exclusively to
the local affairs of Wisconsin's cities and villages. It does
this by contravening the well-recognized purpose of the Home
Rule Amendment, ignoring the evidentiary record, and creating a
heretofore unknown facial uniformity rule.
¶77 Contrary to the majority, I conclude that the city of
Milwaukee may enforce its residency requirement under the powers
granted to local municipalities by the Wisconsin Constitution's
Home Rule Amendment. I would therefore affirm the court of
appeals' determination that Wis. Const. art. XI, § 3(1)
precludes application of Wis. Stat. § 66.0502 to Milwaukee’s
Charter Ordinance 5-02. Accordingly, I respectfully dissent.
1
No. 2014AP400.awb
I.
¶78 At issue here is whether the Wisconsin Constitution's
Home Rule Amendment grants Milwaukee, through its charter
ordinance, the power to enforce its local residency requirement
despite the legislative enactment of Wis. Stat. § 66.0502.
¶79 Municipalities may exercise constitutional home rule
authority by charter ordinance.1 Wis. Stat. § 66.0101. The home
rule constitutional amendment, Wis. Const. art. XI § 3(1),
provides that "[c]ities and villages organized pursuant to state
law may determine their local affairs and government, subject
only to this constitution and to such enactments of the
legislature of statewide concern as with uniformity shall affect
every city or every village."
¶80 For over 75 years, pursuant to a charter ordinance,
Milwaukee has required its employees to live within the city
where they work.2 Under its constitutional home rule authority,
Section 5-02(1) of Milwaukee's City Charter requires all
employees "to establish and maintain their actual bona fide
residence within the boundaries of the city." Milwaukee asserts
that its Charter Ordinance 5-02 has a number of local economic
and societal benefits, such as protecting its tax base, housing
values and local commerce, as well as improved safety through
community policing and rapid response times in emergencies.
1
Wis. Stat. 66.0101 includes a detailed, time-consuming
procedure for municipalities to enact a charter ordinance that
overrides a state law as it relates to the local affairs and
government of the city or village.
2
See Milwaukee Charter 5-02.
2
No. 2014AP400.awb
¶81 However, in 2013 the Wisconsin legislature enacted
Wis. Stat. § 66.0502, which abolished all local residency
requirements in the State of Wisconsin. The new statute
provides that "no local government unit may require, as a
condition of employment, that any employee or prospective
employee reside within any jurisdictional unit." Wis. Stat.
§ 66.0502(3)(a).
¶82 The legislative history of Wis. Stat. § 66.0502
demonstrates that the statute's aim was to eliminate Milwaukee's
residency requirement. As the court of appeals explained,
"[t]he facts in the record, exemplified by the Legislative
Fiscal Bureau paper, make clear that the goal of Wis. Stat.
§ 66.0502 was to target the City of Milwaukee." Black v. City
of Milwaukee, 2015 WI App 60, ¶21, 364 Wis. 2d 626, 869 N.W.2d
522.
¶83 Wisconsin municipalities have two distinct sources of
home rule authority——constitutional and statutory.
Constitutional home rule is expansive and statutory home rule is
limited. Contrary to "the direct and expansive delegation of
power to municipalities under Wis. Const. art. XI, section 3,"
statutory home rule authority is limited. State ex rel. Teunas
v. Kenosha County, 142 Wis. 2d 498, 504, 418 N.W.2d 833 (1988).
¶84 Only cities and villages are granted constitutional
home rule authority. Other units of local government, such as
counties, towns and school districts, have administrative home
rule authority pursuant to statute. See, e.g., Wis. Stat.
3
No. 2014AP400.awb
§ 59.03.3 A county’s statutory home rule authority is limited.
Teunas, 142 Wis. 2d at 504 ("a county board has only such powers
as are expressly conferred upon it or necessarily implied from
the powers expressly given or from the nature of the grant of
power.").
¶85 Milwaukee's residency requirement was enacted under
"the direct and expansive delegation of power to municipalities
under Wis. Const. art. XI, section 3." See id. However, in
reaching its conclusion that Wis. Stat. § 66.0502 precludes the
city of Milwaukee from enforcing its residency requirement, the
majority restricts the constitutional mandate and instead grants
expansive power to the legislature to govern matters that relate
exclusively to the local affairs of Wisconsin's cities and
villages.
II.
¶86 The majority purports to follow the two-step analysis
of the Home Rule Amendment set forth in Madison Teachers, Inc.
v. Walker, 2014 WI 99, ¶101, 358 Wis. 2d 1, 851 N.W.2d 337. In
applying the first step, it explains that this court has
outlined "three areas of legislative enactment: those that are
(1) exclusively a statewide concern; (2) exclusively a local
concern; or (3) a 'mixed bag.'" Majority op., ¶29 (citing
Madison Teachers, 358 Wis. 2d 1, ¶96).
3
Wis. Stat. § 59.03(1) provides that "[e]very county may
exercise any organizational or administrative power, subject
only to the constitution and to any enactment of the legislature
which is of statewide concern and which uniformly affects every
county."
4
No. 2014AP400.awb
¶87 Although the majority summarizes the parties'
positions and identifies their interests, it reaches its initial
conclusion without any analysis whatsoever of the law or the
facts of record. Initially, the majority concludes that Wis.
Stat. § 66.0502 is a "mixed bag." It acknowledges that this
court should then apply the test of paramountcy to determine
whether the legislative enactment is "primarily" or
"paramountly" a matter of local affairs or a matter of statewide
concern." Majority op., ¶32.
¶88 Remarkably, the majority declines to apply the test of
paramountcy and again, without any analysis whatsoever,
ultimately arrives at a contrary conclusion. It "assume[s],
without deciding, that Wis. Stat. § 66.0502 is a matter of local
affairs." Majority op., ¶32.
¶89 In applying the second step of the analysis, the
majority contends that "[f]or purposes of the home rule
amendment, an enactment is uniform when it is facially uniform."
Majority op., ¶7. Without any consideration of how the
legislative enactment "with uniformity shall affect," the
majority summarily concludes that Wis. Stat. § 66.0502 is
facially uniform because the text says that it applies to "any
city, village, town, county or school district." Id.
Accordingly, the majority concludes that "Milwaukee may no
longer enforce its residence requirement." Id.
III.
¶90 The majority's conclusion contravenes the well-
recognized purpose of the Home Rule Amendment, which is to grant
5
No. 2014AP400.awb
power and self-government to municipalities, rather than the
legislature.
¶91 Adopted in 1924, "the home rule amendment was intended
to provide cities and villages with greater autonomy over local
affairs." Madison Teachers, 358 Wis. 2d 1, ¶89; see also State
ex rel. Sleeman v. Baxter, 195 Wis. 437, 445, 219 N.W. 858
(1928) ("The recognized purpose of this amendment was to confer
upon cities and villages a measure of self-government not
theretofore possessed. It is a grant of power to cities and
villages.").4
¶92 Significantly, this grant of local power was intended
to free municipalities from legislative interference. Sleeman,
195 Wis. at 447. This court explained that "[i]n ascertaining
the meaning of the home-rule amendment we should also take into
account the fact that the legislature was not hostile to a
larger measure of local self-government by cities." Van Gilder
v. City of Madison, 222 Wis. 58, 71, 267 N.W. 25 (1936).
4
State ex rel. Sleeman v. Baxter, 195 Wis. 437, 445, 219
N.W. 858 (1928), sets forth the parameters of this grant of
power to cities and villages as follows:
There is no express limitation upon the power of the
legislature. Such limitations as may be found therein
are limitations upon the exercise of the power granted
and not limitations upon the power of the legislature.
Power is granted to cities and villages 'to determine
their local affairs and government subject only to
this constitution and to such enactments of the
legislature of state-wide concerns as shall with
uniformity affect every city or every village.' The
phrase 'subject only to this constitution,' etc., is a
phrase of limitation, but it is a limitation upon the
power granted to cities and villages.
6
No. 2014AP400.awb
¶93 In order to effect the purpose of the Home Rule
Amendment, the "constitutional expression of the will of the
people is to be liberally construed." State ex rel. Michalek v.
LeGrand, 77 Wis. 2d 520, 526, 253 N.W.2d 505 (1977). The
majority pays only lip-service to the purpose of the Home Rule
Amendment. It then focuses exclusively on the power of the
legislature, rather than the expansive powers granted to
municipalities under the Home Rule Amendment. Majority op.,
¶24. As set forth below, the majority's analysis of the Home
Rule Amendment threatens to give license to the legislature to
invade any city it chooses with legislation targeted at matters
of purely local concern.
IV.
¶94 Not only does the majority contravene the well-
recognized purpose of the Home Rule Amendment, it ignores the
facts of record regarding statewide and local interest. Without
consideration of the evidence in the record, the majority
"assume[s], without deciding, that Wis. Stat. § 66.0502 is a
matter of local affairs." Majority op., ¶32.
¶95 In its discussion of the purported statewide interest
behind Wis. Stat. § 66.0502, the majority gives great deference
to the statute's legislative policy statement without
acknowledging the complete dearth of evidence in support of a
statewide interest. The primary statewide interest identified
by the majority is the fact that the "Legislature specially
included a public policy statement in Wis. Stat. § 66.0502."
Majority op., ¶30. This statutory policy simply states: "The
7
No. 2014AP400.awb
legislature finds that public employee residency requirements
are a matter of statewide concern." Wis. Stat. § 66.0502(1).
¶96 Rather than address the fact that there is no evidence
in the record supporting a statewide interest, the majority
repeatedly asserts that legislative enactments are "entitled to
great weight." Majority op., ¶30. According to the majority,
"it is the province of the legislature, not the court, to
determine public policy because as the voice of the people it is
the best judge of what is necessary to meet the needs of the
public." Majority op., ¶30 (citing Flynn v. Dep't of Admin, 216
Wis. 2d 521, ¶24, 576 N.W.2d 245 (1988) (internal quotations
omitted).
¶97 Although the legislative declaration is due great
weight deference, it is certainly not dispositive. Van Gilder,
222 Wis. at 73. As the Van Gilder court explained, this court
is required to make the ultimate determination when there is a
controversy between municipalities and the state regarding
whether a matter is of local or state-wide concern:
The home–rule amendment does not lodge the power to
determine what is a 'local affair' or what is a
'matter of state–wide concern' either with the
municipality or with the legislature or attempt to
define those terms. In the event of a controversy
between municipalities and the state therefore the
court is required to make the ultimate determination.
Id.
¶98 It is the unique role of the courts to determine the
constitutionality of statutory provisions. Marbury v. Madison,
5 U.S. 137, 177 (1803). No legislative declaration can usurp
this power or release us of this duty. Consequently, as the
8
No. 2014AP400.awb
court of appeals explained, "the argument that residency
requirements are a matter of statewide concern simply because
the legislature said so is not persuasive because it is
unsubstantiated." Black, 364 Wis. 2d 626, ¶21.
¶99 In determining whether legislation addresses a
statewide interest, it is necessary to examine whether the
statutory policy expressed in Wis. Stat. § 66.0502(1) is
supported by the evidence in the record. As the court of
appeals repeatedly observed, there is scant evidence in the
record supporting a legitimate statewide interest:
The effect on the state . . . is never substantiated,
and only given lip-service with broad policy
arguments. This complete dearth of evidence to
support the legislature’s contention does not suffice
under the law.
. . .
The problem with the Police Association's argument,
however, is that no evidence in the record allows us
to conclude that § 66.0502 was drafted with the
public's health, safety or welfare in mind. . . .
Instead, the sole reason we can delineate for the
statute's existence is the gutting of Milwaukee's
long-standing residency requirement.
. . .
More importantly, there is no evidence in this record
supporting this assertion [that Wis. Stat. § 66.0502
protects employees against 'unfairly restrictive'
conditions].
Id., ¶¶21, 22, 24.
¶100 Not only does the majority ignore the dearth of
evidence supporting a statewide interest, it fails to address
the overwhelming evidence in support of the city of Milwaukee's
local interest in enforcing its residency requirements. The
9
No. 2014AP400.awb
majority's "assume without deciding" approach allows it to avoid
discussion of the dire consequences this legislation will
inflict on the city of Milwaukee.
¶101 Detroit's experience after similar residency
requirements were abolished in Michigan foreshadows the
impending consequences of the majority's decision in this case.
As the unanimous court of appeals explained, "abolishing
residency requirements could result in Milwaukee's suffering the
same economic decline recently experienced by the city of
Detroit." Id., ¶7. After Detroit's residency requirement was
eliminated, fifty-three percent of the police force moved
outside the city, contributing to a population decline that had
significant economic consequences.5
¶102 In this case, the Legislative Fiscal Bureau prepared a
report detailing the expected impact of Wis. Stat. § 66.0502 on
the city of Milwaukee, which employs over 7000 people, with
approximately half of those employed as police officers or
firefighters. Milwaukee Mayor Tom Barret's affidavit attests
that $366.8 million of Milwaukee’s budget is spent on city
employees' salaries and wages. Mayor Barret's affidavit further
explains that nearly half of Milwaukee’s total operating costs
go towards salaries for police officers and firefighters.
¶103 The projected outflow of Milwaukee's city employees
will cause a reduction in the tax base of $622 million in
5
Local Government Employee Residency Requirements,
Legislative Fiscal Bureau, Joint Committee on Finance, Paper
#554 at 6 (May 9, 2013).
10
No. 2014AP400.awb
residential land values and $27 million in retail property
values. As Judge Kessler explained in her concurrence to the
court of appeals decision, "[a] loss of $649 million from the
Milwaukee tax base will obviously directly impact Milwaukee's
ability to pay for necessary infrastructure, services and wages.
There is no evidence in the record that any other municipality
would likely be similarly affected." Id., ¶42 (Kessler, J.
concurring).
¶104 Wis. Stat. § 66.0502 also interferes with Milwaukee's
ability to promptly respond to emergencies. Allowing city
employees to live outside the city may result in slower service
times during emergencies.6 Milwaukee police are expected to be
responsible for any police matter that comes to their attention
at any time. See Milwaukee Police Department Rule 4 § 025.00
(Rev. July 2008). A police officer's ability to respond to
local emergencies at any time is reduced when the officer no
longer lives in the community in which he or she works.
¶105 Additionally, the city of Milwaukee Police Chief's
affidavit explains that having police officers live in the city
is "critical to the police force's legitimacy and perceived
integrity." Black, 364 Wis. 2d 626, ¶29. According to Police
6
The court of appeals aptly noted that "the fifteen-mile
rule set by § 66.0502(4)(b,c), which allows local governments to
impose requirements that employees live within fifteen miles of
the city or county that employs them, implicitly recognizes that
citizens are safer and better served when emergency responders
live nearby." Black v. City of Milwaukee, 2015 WI App 60, ¶28,
364 Wis. 2d 626, 869 N.W.2d 522.
11
No. 2014AP400.awb
Chief Flynn, community policing increases the effectiveness of
the police force and the safety of the city:
We have an ongoing struggle, as every urban police
department does, to maintain our credibility in the
community we police. The residency requirement helps
to prevent the perception . . . that officers are
outsiders, without any empathy for those they are
policing, because [they] invade residents'
neighborhoods and later return to distant
retreats . . .
. . .
Police officers who live in the community they police
have an increased motivation to maintain a safe
environment for themselves, their families, their co-
officers, and the community as a whole.
Id. Commenters agree with this view, explaining that cities
with residency requirements have experienced the benefit of
improved neighborhoods and lower crime. See, e.g., Joe
Mulligan, Not in Your Backyard: Ohio's Prohibition on Residency
Requirements for Police Officers, Firefighters, and Other
Municipal Employees, 37 U. Dayton L. Rev. 351, 369 (2012).
¶106 Given the overwhelming evidence of the effect that
Wis. Stat. § 66.0502 will have on the city of Milwaukee, I
conclude that the elimination of residency requirements
addresses a matter primarily of local concern.
V.
¶107 The majority further avoids the damaging facts in the
record by creating a heretofore unknown facial uniformity rule
that essentially repeals the Home Rule Amendment. As the
Madison Teachers' court explained, "home rule challenges are, by
12
No. 2014AP400.awb
necessity, fact-specific inquiries. . . ." 358 Wis. 2d 1,
¶113.
¶108 Avoiding discussion of the facts of this case, the
majority contends that "[f]or the purposes of the home rule
amendment, an enactment is uniform when it is facially uniform."
Majority op., ¶7. After making this pronouncement, the majority
summarily concludes that because the text of Wis. Stat.
§ 66.0502 applies to "any city, village, town, county, or school
district," it is facially uniform. Id.
¶109 This ipse dixit approach of the majority threatens the
independence of the court.7 It appears to surrender to the
legislature our constitutional role of renewing legislative
enactments. Instead of engaging in a constitutional analysis of
whether the statute affects with uniformity, in essence it
concludes "well . . . the text says it does."
¶110 Relying on Thompson v. Kenosha County, 64 Wis. 2d 673,
676, 221 N.W.2d 845 (1974), the majority asserts that "facial
uniformity is sufficient to satisfy the home rule amendment's
uniformity requirement." Majority op., ¶36. However, Thompson
is distinguishable because it examined legislation that gave,
rather than eliminated, municipalities' power to govern their
local affairs. 64 Wis. 2d at 687.
¶111 As the Thompson court explained, conferring equal
power satisfies the uniformity requirement because
7
See, e.g., Marmolejo-Campos v. Holder, 558 F.3d 903, 930
(9th Cir. 2009) ("This purported explanation is a non-
explanation——an ipse dixit or 'because I said so' edict.").
13
No. 2014AP400.awb
municipalities retain the right to enact the ordinances they
choose:
Each county in the state has an equal right to decide
to adopt a countywide assessor system. The residents
of all cites, villages, and towns have an equal right
to participate in making that decision through their
right to vote for and petition county board members.
Where a statute confers equal legal powers, that would
seem sufficient to satisfy the uniformity requirement.
Thus, for example, two cities may have identical
powers, yet the respective city councils may enact
entirely different sets of ordinances.
Id. Thompson thus concluded that "[t]he state could hardly be
held to have violated the uniformity requirement in such a
situation." Id.
¶112 Granting municipalities power is distinguishable from
the elimination of Milwaukee's residency requirement under Wis.
Stat § 66.0502. When the legislature grants every municipality
power over an area of governance, each municipality is uniformly
affected because it retains the discretionary authority to act
under that power.
¶113 In contrast, the elimination of residency requirements
restricts, rather than expands a grant of local power. Here,
municipalities without an employee residency requirement will be
unaffected by Wis. Stat. § 66.0502, but it will have an outsize
effect on the city of Milwaukee which did have a residency
requirement.
¶114 Admittedly, Van Gilder presents a more challenging
precedent. It sends mixed messages and ultimately lands on a
constitutional interpretation that is at odds with the text of
the constitutional Home Rule Amendment.
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No. 2014AP400.awb
¶115 Initially Van Gilder signals an interpretation that
honors the language of the constitutional amendment. "The
power[] of municipalities . . . to enact an organic law dealing
with local affairs and government is subject to such acts of the
legislature relating thereto as are of state-wide concern and
affect with uniformity all cities." Van Gilder, 222 Wis. at 73.
¶116 Later, however, Van Gilder lands on an interpretation
that is at odds with the text of the Home Rule Amendment: "when
the legislature deals with local affairs as distinguished from
matters which are primarily of state-wide concern, it can only
do so effectually by an act which affects with uniformity every
city." Id. at 80-81.
¶117 The latter misguided interpretation of the
constitutional Home Rule Amendment has been adopted by
subsequent courts, including recently by this court in Madison
Teachers and by the majority today.
¶118 In Madison Teachers, this court interpreted the Home
Rule Amendment to mean that legislative enactments will trump
local laws if they either address a statewide matter or
uniformly affect every municipality. 358 Wis. 2d 1, ¶101. If
the matter is primarily a local concern, Madison Teachers
instructs that the court must determine whether the statute
uniformly affects every municipality. Id. If the statute
satisfies the uniformity requirement, it does not violate the
Home Rule Amendment. Id. I dissented in Madison Teachers.
¶119 Contrary to the majority's interpretation, I agree
with the amicus briefs of the League of Wisconsin Municipalities
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and the Wisconsin Institute for Law and Liberty, as well as the
brief of the city of Milwaukee and the unanimous court of
appeals' observation that "the test articulated in Madison
Teachers is somewhat at odds with the plain language of the home
rule amendment." Black, 364 Wis. 2d 626, ¶15.
¶120 The majority here continues this error. I interpret
the home rule constitutional amendment to mean what it says:
the legislature can enact a law superseding a municipality's
charter ordinance if the law is of "state wide concern as with
uniformity shall affect every city or every village."8
¶121 A legislative act must be of statewide concern and
then it must apply uniformly. The majority's interpretation
provides otherwise. It states that a legislative act can
supersede a city’s charter ordinance dealing with solely local
matters, with no statewide concern whatsoever, as long as it
does so uniformly. Thus, the majority simply ignores the
requisite "statewide concern" language of the Home Rule
Amendment.
¶122 Additionally, the majority also ignores the lack of
uniform effect. Although Wis. Stat. § 66.0502 does not name any
particular municipality, it will have an outsizes effect on the
city of Milwaukee for the reasons set forth above, including a
projected loss of $649 million from Milwaukee's tax base.
8
Because the textual analysis of the Home Rule Amendment is
set forth in ¶4 of Justice Rebecca Bradley's concurrence, I need
not repeat that analysis here.
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¶123 The effect on other Wisconsin municipalities is simply
not addressed by the majority opinion. As the court of appeals
aptly states, "the notion that a statute purporting to gut the
tax bases and compromise the neighborhood integrity of all
municipalities would pass both houses of the legislature defies
logic." Id., ¶33. The majority's newly created facial
uniformity rule eliminates the requirement that courts review
the factual particulars of a home rule challenge.
¶124 Under the majority opinion, the only legislation that
would not uniformly affect all municipalities is one that would
overtly single out a particular city or village. The
legislature is now free to search for laws unique to Milwaukee,
Madison, Green Bay, or any other municipality of its choosing
and enact facially neutral legislation abrogating individual
local laws.
¶125 Ultimately, the majority opinion disregards the
fundamental rule that "we interpret the home rule amendment with
an eye toward preserving the constitution." Id., ¶32 (citing
State ex rel. Ekern v. City of Milwaukee, 190 Wis. 633, 639, 209
N.W. 860 (1926)). As the court of appeals warned, a facial
uniformity standard "all but obliterate[s] the home rule
amendment, which is not only illogical but also contrary to
law." Id.
¶126 In sum, I conclude that the city of Milwaukee may
enforce its residency requirement under the powers granted to
local municipalities by the Wisconsin Constitution's Home Rule
Amendment. I would therefore affirm the court of appeals
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No. 2014AP400.awb
determination that Wis. Const. art. XI, § 3(1) precludes
application of Wis. Stat. § 66.0502 to Milwaukee Ordinance 5-02.
Accordingly, I respectfully dissent.
¶127 I am authorized to state that Justice SHIRLEY S.
ABRAHAMSON, J. joins this concurrence/dissent.
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